Anarchism triumphant: Free software and the death of copyright

First Monday

Volumn 4, Issue 8, 1999, Pages

  Moglen, Eben ^a  

^a Columbia Law School ^*  (United States)

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EID: 27944436178     PISSN: 13960466     EISSN: None     Source Type: Journal    
DOI: 10.5210/fm.v4i8.684     Document Type: Article

References (33)

1. The distinction was only approximate in its original context. By the late 1960's certain portions of the basic operation of hardware were controlled by programs digitally encoded in the electronics of computer equipment, not subject to change after the units left the factory. Such symbolic but unmodifiable components were known in the trade as "microcode," but it became conventional to refer to them as "firmware." Softness, the term "firmware" demonstrated, referred primarily to users' ability to alter symbols determining machine behavior. As the digital revolution has resulted in the widespread use of computers by technical incompetents, most traditional software - application programs, operating systems, numerical control instructions, and so fort - is, for most of its users, firmware. It may be symbolic rather than electronic in its construction, but they couldn't change it even if they wanted to, which they often - impotently and resentfully - do. This "firming of software" is a primary condition of the propertarian approach to the legal organization of digital society, which is the subject of this paper.
2. Within the present generation, the very conception of social "development" is shifting away from possession of heavy industry based on the internal-combustion engine to "post-industry" based on digital communications and the related "knowledge-based" forms of economic activity.
3. Actually, a moment's thought will reveal, our genes are firmware. Evolution made the transition from analog to digital before the fossil record begins. But we haven't possessed the power of controlled direct modification. Until the day before yesterday. In the next century the genes too will become software, and while I don't discuss the issue further in this paper, the political consequences of unfreedom of software in this context are even more disturbing than they are with respect to cultural artifacts.
4. See, e.g., J. M. Balkin, 1998. Cultural Software: a Theory of Ideology. New Haven: Yale University Press.
5. See Henry Sumner Maine, 1861. Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Idea. First edition. London: J. Murray.
6. In general I dislike the intrusion of autobiography into scholarship. But because it is here my sad duty and great pleasure to challenge the qualifications or bona fides of just about everyone, I must enable the assessment of my own. I was first exposed to the craft of computer programming in 1971. I began earning wages as a commercial programmer in 1973 - at the age of thirteen - and did so, in a variety of computer services, engineering, and multinational technology enterprises, until 1985. In 1975 I helped write one of the first networked e-mail systems in the United States; from 1979 I was engaged in research and development of advanced computer programming languages at IBM. These activities made it economically possible for me to study the arts of historical scholarship and legal cunning. My wages were sufficient to pay my tuitions, but not - to anticipate an argument that will be made by the econodwarves further along - because my programs were the intellectual property of my employer, but rather because they made the hardware my employer sold work better. Most of what I wrote was effectively free software, as we shall see. Although I subsequently made some inconsiderable technical contributions to the actual free software movement this paper describes, my primary activities on its behalf have been legal: I have served for the past five years (without pay, naturally) as general counsel of the Free Software Foundation.
7. The player, of course, has secondary inputs and outputs in control channels: buttons or infrared remote control are input, and time and track display are output.
8. This is not an insight unique to our present enterprise. A closely-related idea forms one of the most important principles in the history of Anglo-American law, perfectly put by Toby Milsom in the following terms: The life of the common law has been in the abuse of its elementary ideas. If the rules of property give what now seems an unjust answer, try obligation; and equity has proved that from the materials of obligation you can counterfeit the phenomena of property. If the rules of contract give what now seems an unjust answer, try tort. ... If the rules of one tort, say deceit, give what now seems an unjust answer, try another, try negligence. And so the legal world goes round. S.F.C. Milsom, 1981. Historical Foundations of the Common Law. Second edition. London: Butterworths, p. 6.
9. See Isaiah Berlin, 1953. The Hedgehog and the Fox: An Essay on Tolstoy's View of History. New York: Simon and Schuster.
10. See The Virtual Scholar and Network Liberation.
11. Some basic vocabulary is essential. Digital computers actually execute numerical instructions: bitstrings that contain information in the "native" language created by the machine's designers. This is usually referred to as "machine language." The machine languages of hardware are designed for speed of execution at the hardware level, and are not suitable for direct use by human beings. So among the central components of a computer system are "programming languages," which translate expressions convenient for humans into machine language. The most common and relevant, but by no means the only, form of computer language is a "compiler." The compiler performs static translation, so that a file containing human-readable instructions, known as "source code" results in the generation of one or more files of executable machine language, known as "object code."
12. This, I should say, was the path that most of my research and development followed, largely in connection with a language called APL ("A Programming Language") and its successors. It was not, however, the ultimately-dominant approach, for reasons that will be suggested below.
13. This description elides some details. By the mid-1970's IBM had acquired meaningful competition in the mainframe computer business, while the large-scale antitrust action brought against it by the U.S. government prompted the decision to "unbundle," or charge separately, for software. In this less important sense, software ceased to be free. But - without entering into the now-dead but once-heated controversy over IBM's software pricing policies - the unbundling revolution had less effect on the social practices of software manufacture than might be supposed. As a fellow responsible for technical improvement of one programming language product at IBM from 1979 to 1984, for example, I was able to treat the product as "almost free," that is, to discuss with users the changes they had proposed or made in the programs, and to engage with them in cooperative development of the product for the benefit of all users.
14. This description is highly compressed, and will seem both overly simplified and unduly rosy to those who also worked in the industry during this period of its development. Copyright protection of computer software was a controversial subject in the 1970's, leading to the famous CONTU commission and its mildly pro-copyright recommendations of 1979. And IBM seemed far less cooperative to its users at the time than this sketch makes out. But the most important element is the contrast with the world created by the PC, the Internet, and the dominance of Microsoft, with the resulting impetus for the free software movement, and I am here concentrating on the features that express that contrast.
15. I discuss the importance of PC software in this context, the evolution of "the market for eyeballs" and "the sponsored life" in other chapters of my forthcoming book, The Invisible Barbecue, of which this essay forms a part.
16. This same pattern of ambivalence, in which bad programming leading to widespread instability in the new technology is simultaneously frightening and reassuring to technical incompetents, can be seen also in the primarily-American phenomenon of Y2K hysteria.
17. The critical implications of this simple observation about our metaphors are worked out in "How Not to Think about 'The Internet'," in The Invisible Barbecue, forthcoming.
18. Technical readers will again observe that this compresses developments occurring from 1969 through 1973.
19. Operating systems, even Windows (which hides the fact from its users as thoroughly as possible), are actually collections of components, rather than undivided unities. Most of what an operating system does (manage file systems, control process execution, etc.) can be abstracted from the actual details of the computer hardware on which the operating system runs. Only a small inner core of the system must actually deal with the eccentric peculiarities of particular hardware. Once the operating system is written in a general language such as C, only that inner core, known in the trade as the kernel, will be highly specific to a particular computer architecture.
20. A careful and creative analysis of how Torvalds made this process work, and what it implies for the social practices of creating software, was provided by Eric S. Raymond in his seminal 1997 paper, The Cathedral and the Bazaar, which itself played a significant role in the expansion of the free software idea.
21. This is a quotation from what is known in the trade as the "Halloween memo," which can be found, as annotated by Eric Raymond, to whom it was leaked, at http://www.opensource.org/halloween/halloween1.html.
22. As recently as early 1994 a talented and technically competent (though Windows-using) law and economics scholar at a major U.S. law school confidently informed me that free software couldn't possibly exist, because no one would have any incentive to make really sophisticated programs requiring substantial investment of effort only to give them away.
23. This question too deserves special scrutiny, encrusted as it is with special pleading on the state-power side. See my brief essay "So Much for Savages: Navajo 1, Government 0 in Final Moments of Play."
24. See GNU General Public License, Version 2, June 1991.
25. V. Vallopillil, Open Source Software: A (New?) Development Methodology.
26. The looming expiration of Mickey Mouse's ownership by Disney requires, from the point of view of that wealthy "campaign contributor," for example, an alteration of the general copyright law of the United States. See "Not Making it Any More? Vaporizing the Public Domain," in The Invisible Barbecue, forthcoming.
27. A recent industry estimate puts the number of Linux systems worldwide at 7.5 million. See Josh McHugh, 1998. "Linux: The Making of a Global Hack," Forbes (August 10). Because the software is freely obtainable throughout the Net, there is no simple way to assess actual usage.
28. Eric Raymond is a partisan of the "ego boost" theory, to which he adds another faux-ethnographic comparison, of free software composition to the Kwakiutl potlatch. See Eric S. Raymond, 1998. Homesteading the Noosphere.. But the potlatch, certainly a form of status competition, is unlike free software for two fundamental reasons: it is essentially hierarchical, which free software is not, and, as we have known since Thorstein Veblen first called attention to its significance, it is a form of conspicuous waste.
29. See Thorstein Veblen, 1967. The Theory of the Leisure Class. New York: Viking, p. 75. These are precisely the grounds which distinguish the anti-hierarchical and utilitiarian free software culture from its propertarian counterparts.
30. Vinod Vallopillil, Linux OS Competitive Analysis (Halloween II). Note Vallopillil's surprise that a program written in California had been subsequently documented by a programmer in Hungary.
31. See "They're Playing Our Song: The Day the Music Industry Died," in The Invisible Barbecue, forthcoming.
32. International News Service v. Associated Press, 248 U.S. 215 (1918). With regard to the actual terse, purely functional expressions of breaking news actually at stake in the jostling among wire services, this was always a distinction only a droid could love.
33. See "No Prodigal Son: The Political Theory of Universal Interconnection," in The Invisible Barbecue, forthcoming.