I previously wrote a long rant on this subject in this forum (See: "the myth
of sustainable commercial software" [or something very close to that])...
The quick version:
1) the author has a right to profit from his creation
2) all ideas will be mimicked (monkey see, monkey do)
3) the author has already mimicked the ideas of others
4) others will mimic his ideas if they don't stink
5) turn about is fair play
6) An author's "creation" is his code, not the general ideas encompassed in
his code
7) this behavior is wired into the human brain, as a human can not see
something operate and not learn from that observation, and therefore be
likely to mimic the useful parts
8) if you bet the farm on your ideas about how something should be done in
software... and your business plan does not cover the fact that it *WILL* be
mimicked... write off one farm...
Using someone's code without their consent is "copyright infringement", not
"theft" as to "steal" something you must deprive the original owner of that
thing. That is an important distinction that people forget when they start
yipping on this subject.
Neither "the money he might have made" nor "the concepts implicit in the
code" are "the thing" an author creates. The code is the only thing, and
the author still has the code. So mimicry isn't theft. Period. Ask a
lawyer.
There was "no intent to create the idea of intellectual property" in the
founders heads when they put copyrights and patents into the US
Constitution. I used to have a good link to a place in Thomas Jefferson's
own writings make this clear. You can not "own" an "idea".
I will only honor the "need to own the ideas" of a software producer if they
can demonstrate that they never used any preexisting ideas in the creation
of their software. We are standing on the shoulders of giants here, and if
you opened a file, or searched a string, or added two numbers together, or
in-fect, invoked a compiler or submitted instructions to a CPU of
other-than-your-own design, you are engaged in exactly the same behaviors
(using others ideas without paying them) that you are complaining that
others might do to you.
Besides, it is provable that you can not make money in commercial software
alone, without treating the software like designer clothes, and constantly
produce new variations that are uniquely yours. (This is what game
producers do, this is also why Microsoft sells mice and joysticks, see my
longer rant for the full proof.)
The only way to keep a secret is to tell nobody. A secret once told, is a
secret no longer. The software equivalent future aphorism will be "A
program once run, grants its ideas to the public domain."
Too bad...
So Sad...
Bye bye...
Rob.
-----Original Message-----
From: linux-kernel-owner@vger.kernel.org
[mailto:linux-kernel-owner@vger.kernel.org]On Behalf Of Timothy Miller
Sent: Tuesday, April 29, 2003 7:02 AM
To: James Bottomley
Cc: Larry McVoy; linux-kernel@vger.kernel.org
Subject: Re: Why DRM exists [was Re: Flame Linus to a crisp!]
James Bottomley wrote:
>>
>>
>
>As far as the DMCA goes, many people think it oversteps the
>constitutional boundary by giving to IP holders rights they are
>forbidden from possessing, and hence they come to talk about "ownership
>of intellectual contributions" rather than "my limited right to profit
>by my invention"...only time and the courts will tell.
>
>
>
I believe that it's very important that an author have rights to profit
exclusively from their creations. It gives them incentive to create. I
mean, if every time you developed some cool new technology, some foreign
company took it, made huge profits from it, and left you with out a dime
for all of your effort, wouldn't that put a huge kink in your desire to
expend that sort of effort?
On the other hand, I don't believe people should rest on their laurels.
Limited rights is an incentive to get off one's behind and create
another thing.
I think patent periods should be very strongly enforced and SHORT. Like
most of these patents that we think of as frivolous should be allowed,
but the time limit should be at most a year or two. Many of these
'defensive' patents that companies like Amazon have are actually good
things because they ensure that these ideas go into the public domain.
If some patent is deemed particularly clever, then the limit should be
more like five years.
I have mixed feelings on defensive patents. "Since I know that you're
going to patent what I'm already doing and then sue me over it, I'm
going to beat you to the punch and patent it to protect myself." It
makes sense in a very sad sort of way.
>
>
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