Stick to law. Let me write code

In this article some lawyer has the audacity to tell me about software development, my motivations and whether or not Open Source has a future. In the process, shows that he should stick to conveyancing or some other equally intellectually non-taxing form of employment. Frankly, if the state of the US Law system is that somebody with that limited level of research, insight can become (and I quote) James Parker Hall Distinguished Service professor of law at the University of Chicago and Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, then frankly, you septics deserve all the legal and judicial pain you get.
It’s hard to know where to start when somebody that clearly doesn’t know what they are talking about on a topic proceeds to lecture people on that topic.. However, rather than just smother them with bile (as much as that was my first draft) I’ll try and address a few of the most glaring points.
First of all the author confuses the GPL with all open source licenses.
    The linchpin of much, but not all, of the open source movement is the General Public License (GPL)
Many projects are licenced with the GPL no doubt. Many also depends on where you look. If I look on SourceForge, it’s 85%, if I look on it rapidly approaches 0%. Not even the “big 4” (LAMP) can agree on a license, and then with Perl and Java projects it’s all up in the air. While it is true that Linux and many of the Linux tools all the the GPL, this is a tightly coupled grouping of projects. I would hesitate to suggest that the “widest distribution” of Open Source licenses is the BSD license (and it’s kin, like Apache, Perl, PHP), however I’d really like to hear from somebody who’s done the research.
Secondly the author draws this rather unusual conclusion about open source developers and supporters.
    first note that open source software relies on the very private property regime that its supporters, most noticeably Richard Stallman, disdain on moral grounds
I don’t know about the rest of the world, and I wouldn’t like to speak for them, but I can say that he is possibly right about Richards feelings, however he is hopelessly, completely, utterly wrong about myself. I like private property, I like it so much that I work during the day, write open source at night, and then spend my own money on my own private property. I choose to give away my open source projects because I want to. I can understand that it might be a shocking thought for somebody who lives to bill people in 6 minute increments, that somebody might actually choose to do something for the love of it, which I (and some of my colleagues) do and then give it away, for free, gratis, with no strings attached (not even a GPL).
And, swinging wildly we go for strike 3:
    The open source movement shares many features with a workers’ commune, and is likely to fail for the same reason: it cannot scale up to meet its own successes.
To which I retort. Absolute 100%, bollocks. Where else do you see such incredibly successful software projects as the Linux OS (packaged into it’s many forms), the Apache HTTP server, the entire Jakarta suite of Java software where teams of geographically distributed developers work together in (relative) harmony? These projects have been successful for years, and will continue to do so for years, as it’s done for the love of it. As people get tired, new people join and provide fresh views, more shouting and wild gesticulating, but continued progress. If you want to see stagnation, look at corporate development. They’re still trying to get RAD tools working and don’t understand why it’s been failing for 10+ years. Here’s some free advice, Smart people build good solutions and there ain’t no other way around it.
Finally, the author and I agree on one point:
    But suppose this analysis is wrong.
It is. Tragically, and horribly wrong. And you know why I can state this so confidently ? Because I’ve been doing it for years, I’ve been working with Open Source projects (as a user, bug-reporter, contributor of patches and developer) for years and it shows no signs of slowing down, stagnating or dropping off.
If anything, it’s accellerating dramatically. So, all you journalists, lawyers, accountants, industry pundits and anybody else with no first hand experience in writing and using Open Source code, please go away and talk about your own industries. Or at the very least have the courtesy to ask people who know what they are talking about. You’re embarrassing yourselves, and while in some circumstances that can be entertaining, this is a little more like a train wreck.


5 thoughts on “Stick to law. Let me write code

  1. 100% jon. I also noticed how the author slips into corporate structure speak:
    Yet that danger can be ducked only by creating a capital structure that gives present employees separable interests in either debt or equity in exchange for their contributions to the company.
    Um, their not employees actually.. they do it voluntarily, not to be compensated with dollars. Yes they actually do it because they like doing it. I see this time and time again from some of my friends who are non geeks. “Why would you write that software and just give it away”, to them I say “think journey, not destination”. It’s a shame most people have so few intellectual focuses in their life; these are the same people who think nothing of wasting another 2 hours of their life watching “Australian Idol”…
    Ok, I’m a bit off topic, but you get the point 🙂

  2. Jon:
    Interesting post.
    I feel Epstein’s comment “open source software relies on the very private property regime that its supporters … disdain on moral grounds” is entirely correct.
    The GPL (and most other open source licenses) is just that: a license, or binding legal terms under which the software may be used.
    The only reason the GPL is enforcable is because copyright law exists and is enforced. Without the law and enforcement, people would be free to infringe on the GPL, such as incorporating free software in a closed-source proprietary system without releasing the source code.
    Without copyright law the GPL would die.
    It is precisely this fact, and that open source supporters general aversion to intellectual property — whether it be copyright, mark, or patent law — that is contradictory and hypocritical.
    You point out that you support private property — good for you. However, the majority of open source supporters do not. Just last week a fellow OSS-supporting ThoughtWorker was explaining to me how copying a DVD from the public library wasn’t illegal and is not stealing. No doubt he would find it wrong if he heard someone incorporated his GPLed work into a for-profit closed source system.
    Finally, Epstein is just “some lawyer” like Martin Fowler is “some programmer.” He studies economics, law, and IP for a living and is on the short list for the Nobel prize.
    I always hate to make the appeal to authority argument, but you’re very harsh towards him. Saying Epstein doesn’t know anything about IP and economics is like saying Kent Beck doesn’t know anything about XP.

  3. Hi Garrett,
    Thanks for the response. I suppose we’ll have to disagree on the relative levels of moral distain for private property rights.
    Frankly, there are people that steal stuff, and there are people who don’t. Yes, there’s a sliding scale in between, but copying a DVD that you don’t own is stealing in my book. As some of my close friends who don’t share my views on copying digital media know, I’m not some bible thumping evangelisti, but I make my own choices.
    Again, I don’t support the GPL. I am a strong support of the BSD style licences. I don’t care if people use my stuff and don’t incorporate any changes. I do it for personal reasons. I don’t care if the GPL dies. In my opinion it’s a bad license. Others disagree, that’s a good thing. We’ve got choices.
    If Martin said something dumb, like I think Epstein did, then I’d give him a serve of my opinion, privately first (because that’s courtesy of belonging to the same company) and if he continued to say dumb things, then I’d happily flame him.
    If Epstein was talking about IP law, then maybe I’d be less critical, but he wasn’t. He was ascribing political, ethical, moral and motivational attributes to all open source developers. He was then, and is now, wrong in my opinion.
    If Kent said, “all people who don’t practice XP are stealing from their customers” then I’d be preparing a similar response.
    As to being harsh, well, I’m cruel but fair. I’m harsh to everybody 😉

  4. Violating IP rights is not theft. Let’s look at some other analogies. What do you call these?
    * sneaking into a movie without paying?
    * ditto, but for a concert?
    * riding the train without a ticket?
    These are better comparisons to pirating a movie than theft, because in none of these cases has the “victim” lost actual goods. Instead, they’ve lost a potential gain. (In fact, in each of the above, some slight damage has been done; e.g. the train would have used a miniscule amount more energy, the cinema had a seat that could have been filled. With IP violations, not even this slight damage has occured)
    Now, none of these analogies describes an activity that is legal, but nobody calls these theft either.
    There’s actually a spin on IP violations in that it can be wealth generating. Think of it: previously, there was X amount of value, now there is X+Y. Powerful stuff; just ask the factories in China that produce fake Gucci handbags.

  5. I said ; ” copying a DVD that you don’t own is stealing in my book. ”
    To which (I presume) Robert replied ; “Violating IP rights is not theft.”
    I honestly don’t care what the strict legal interpretation is, to me, and my moral code, it’s stealing.
    And, for all the examples you provide, I consider them stealing as well. And you can add, riding in a Taxi, or eating at a restaurant and then doing a runner, as well as using a pirate cable decoder. All are services that somebody has set a price on, that you can _choose_ to pay, or not pay.
    If you choose not to pay, in my book, then you don’t get the benefit of that service. If you do decide to attempt to get the benefit of that service, without paying for it, then you’re stealing.
    As I said in my previous comment, this is my opinion, and I’m happy for others to feel like they’re adding to the economy while ripping a DVD. I can’t. It’s as simple as that.

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