Just for Fun : The Story of an Accidental Revolutionary (26 page)

And the abuse! I don’t get that much abuse these days, but it still happens. People who don’t like open source or people who are just upset about bugs will send me email, cursing me over their frustrations. Compared to the amount of positive mail I get, it’s minuscule. But it still happens.

Yes, if I had realized how much work and how hard, how difficult a lot of things would have been, I probably would not have done it. If I had had enough knowledge to understand the problems in advance, I probably never would have taken Linux far beyond its initial release. If I had known how much detail you have to get right, and how much people expect of an operating system, I would have been able to envision horror scenarios of things I couldn’t handle.

But I also wasn’t able to predict the upside. Like how much support I would get, and how many people would be working together on this. So now I change my mind. I guess if I had actually known the upside, I probably
would
have done it.

Intellectual Property

The intellectual property debate is so hot these days that I can’t wander into a restroom without running across graffiti supporting one side or the other. Some people think that patents and other forms of intellectual property law are the bane of the free universe, and that these laws are not just misguided but actually
evil
and should be struck down as soon as possible. Others are convinced that pretty much the whole world economy is driven by intellectual property. And
those
people want to do anything to strengthen the legal status of IP rights.

As a result, the graffiti on the issue gets quite graphic at times.

Of course, most of it is on the virtual restrooms on the Internet, not so much the restrooms in the hotspots of San Jose’s nightlife.
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There’ll be huge flamefests over some specific issue associated with intellectual property law, with people arguing everything from First Amendment rights to whether IP law might make open source development impossible sometime in the future.

And I find myself certifiably schizophrenic on the issue.

It’s not that I don’t have an opinion: I have very strong opinions on the worth of intellectual property, but they end up being on both sides of the argument. I can tell you, this can be very confusing. It means that I end up arguing both sides. And I think this is because there really
are
two sides to intellectual property, and they share nothing but the name.

To many people, including me, intellectual property is all about human inventiveness, about the very thing that makes us
humans
instead of animals (that, and thumbs, of course). And in that setting, the very name “intellectual property” is an affront: It’s not property to be sold like chattel, it’s the act of creation, it’s the greatest thing any human can ever do. It’s Art, with a capital A. It’s the Mona Lisa, but it’s also the end result of a long night of programming, and it’s an end result that you as a programmer are damned
proud
of. It’s something so precious that selling it isn’t even possible: It’s indelibly a part of who you are.

That kind of creativity—whether it be in the form of painting, music, sculpture, writing, or programming—should be sacred. The creator and the thing he or she created have a bond that cannot be severed. It’s like the bond between a mother and child, or between bad Chinese food and MSG. But at the same time it’s something that everybody in the whole world should be able to be part of, because it
is
humanity.

And then, in the other corner, weighing in at an approximate seven gadzillion billion U.S. dollars a year, intellectual property is huge business. Human creativity got a price tag, and it turned out to be quite expensive. Creativity is rare, and as a result it is not just expensive but also extremely lucrative. Which brings in a totally different class of arguments, and totally different kinds of people. The kind of people who call the end result of human creativity “property.” Not to mention, of course, lawyers.

Read the title of this chapter again. The “property” people are winning. After all, their name stuck. So what’s the problem?

The most well-known example of intellectual property is the notion of copyright. Copyrights are basically the codification of the rights of any creator to do with his or her creation as he or she wishes. The “owner” of the creation can decide on how that creation should be used.

Copyrights are also legally very simple to get. You don’t have to register your copyright: You are automatically the copyright holder of whatever creative work you do. This is an important distinction from most other intellectual property law, mainly because it actually makes it easy for individuals, not just big corporations, to own copyrights.
You
can own a copyright, simply by virtue of writing, painting, or generally creating something unique. If you want to, you can add a legend like “(C) Copyright 2000 Yourname Here,” but quite frankly, you don’t need to. You own the copyright whether you say so or not. Saying so just makes it easier for other people to track you down if they want to use your work.

Of course, just owning a copyright in itself is not very useful. But the fact that you own what you create means that you can control how it is used. You have, for example, the right to sell such a work of art to somebody else, and nobody but the IRS gets to have any say in the matter. But it’s about
more
than just the money, and that’s where a lot of people seem to find themselves flummoxed.

For example, you can use your power as owner of a copyright to try to do more interesting things than just sell it. You can license it. This is even
better
than selling it; instead of selling the work of art you can sell the license to do certain things to it, and still retain the copyright on it. Basically, you can have your cake and eat it, too. This is how the Microsofts of the world get created: endlessly selling the rights to use something, without actually losing anything. No wonder people just
love
to own this kind of property.

Does anybody perhaps start to see a problem here? If you don’t see anything strange so far, I have a bridge and a few pieces of waterfront property to sell you.

The basic problem with intellectual property is starting to show itself: You as the owner of intellectual property can effectively sell it forever, without ever losing anything yourself. You don’t risk anything, and in fact you might decide to write your license in a way that basically says that even if the property is
flawed,
you cannot be held responsible in any way. Sounds preposterous? You’d be surprised.

Flaw: no consumer protection.

It gets worse. The copyright holder not only has the right to sell his or her property without losing it, but also the right to sue people who sell property that
looks
like his or hers. Clearly the copyright owner has rights over that
derived work.

Clearly? Not so fast. Where do you draw the line between inspiration and copying? And what happens when different people come up with similar ideas? Who gets the gravy train of being able to sell his idea over and over and over again, and gets to tell the other people to butt out of his business? It’s not just consumers who aren’t protected, it’s also
other
creative people who are not protected by the notion of “intellectual property.”

What makes the discussion ugly at this point is that a lot of the arguments for stronger intellectual property rights are based on the notion of giving inventors and artists more “protection.” What people don’t seem to ever realize is that giving such powerful rights to some people also ends up taking rights away from others.

And maybe not so surprisingly, the proponents of stricter intellectual property laws are the organizations that stand to gain the most. Not the artists and inventors themselves, but the clearinghouses of IP: companies that make a living off other people’s creativity. Oh, and lawyers, of course. The end result? Copyright law amendments like the infamous Digital Millennium Copyright Act (DMCA), which removes the last vestiges of consumer rights over the use of copyrighted material.

Now, if you are getting the notion that I think copyrights are actually detrimental, you’re wrong. I happen to absolutely love copyrights, I just don’t believe in taking the rights of the authors
too
far. Not to the point of screwing the consumer over. And I say this not just as a consumer, but as a producer of copyrighted material myself, both in the form of this book and of Linux itself.

I, as a copyright holder, have my rights. But with rights come obligations—or as they say in certain neighborhoods,
noblesse oblige.
And so I have the obligation to use those rights in responsible ways, and not as a weapon against others who lack such rights. As one great American once declared, “Ask not what your copyright can do for you, ask what you can do for your copyright”—or something to that effect.

And in the end, copyright is, despite even the DMCA, a fairly mild and well-behaved form of intellectual property. The notion of “fair use” does still exist, and holding a copyright does not give
all
rights to the work to the copyright holder.

The same cannot be said for patents, trademarks, and trade secrets; the heavy drugs of IP. Discussions over software patents in particular have gotten so inflamed in technical circles that it officially counts as one of the subjects you should not discuss in polite company, along with gun control, abortion rights, medical marijuana, and whether Pepsi tastes better than Coca Cola. And the reason is that patents, in many ways, give control over new inventions similar to that of copyrights, but with few of the redeeming qualities of copyrights.

One of the most awkward issues with patents is that, unlike with copyrights, you don’t get a patent just for inventing something new. No, you get a patent after you’ve gone through the painful and prolonged process of filing for it with the patent office. Waiting for the patent office, by the way, is a bit like standing in line at the DMV, but you have to realize that you stand in line with about twelve patent lawyers, and the line is TWO YEARS LONG. In short, it’s not something you do for fun on a Friday evening if the kids fell asleep early.

As if to add insult to injury, the patent office doesn’t necessarily have the resources to check whether the patent for a new invention of yours is really all that groundbreaking. It’s not as if they have Einsteins
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working for them, so it’s fairly hard to give new inventions their proper checking. Which means that, in many cases, obviously bogus patents have been accepted. Think of it as the post office with Ph.D.’s—minus the guns.

So what’s the result? Very few individuals get patents, for obvious reasons.
Companies,
on the other hand, get a ton of them. They are useful as weapons against other companies that threaten to sue over the patents
they
own. The patent system of today is basically a Cold War with IP instead of nukes. And it’s not much prettier. The people left huddling in bomb shelters are the individual inventors, who have to deal with a system gone crazy and who lack the resources to have 12,000 lawyers on staff.

Now, if you want to avoid the bother with patents, you can go for the strongest drugs of IP, trade secrets. The advantage of the trade secret is that you don’t have to worry about a Trade Secret Office or anything at all: You can just stamp your intellectual property “secret” and be done with it. You can still tell people about it, but you have to tell them it’s a secret.

People used to do this all the time before, and that is actually why patent law was originally introduced. In order to encourage individuals and companies to expose their secrets, patent law allowed for protection in the marketplace for some time
if you divulged what your secret to success was.
A basic form of tit-for-tat: You tell how you do something, and we’ll give you exclusive rights for X years.

Before patents, people would guard their technological advantage jealously and take their secrets to the grave. That was, for obvious reasons, bad for technical evolution because promising technologies were never divulged to anybody else. The promise of exclusive rights made patents a very powerful incentive to tell all, as you no longer had to worry about your competition finding out what you were doing—at which point you would otherwise have lost the protection of it being secret.

However, that was then, and this is now. These days even trade secrets have legal protection, for unfathomable reasons. Any sane person realizes that once a secret is out, it is no longer a secret. Except in the strange and twisty passages of intellectual property law, where secrets can continue to be secrets even after everybody knows what they are. And where the knowledge you have in your head can get you sued, if you happen to go to work for the wrong employer. Some intellectual property law is downright scary.

To a large degree, finding peace in this intellectual property war is what open source is all about. While a lot of people have their own opinions about what open source really tries to do, in many ways you can see it as a high-tech detente, a defusing of copyright as a weapon in this fight of intellectual property.

So open source would rather use the legal weapon of copyright as an invitation to join in the fun, rather than as a weapon against others. It’s still the same old mantra: Make Love, Not War, except on a slightly more abstract level (probably a
lot
more abstract, considering some of the geeks I know).

But as with any major philosophical rift, there is always the other side of the story. This is where my certifiable schizophrenia comes in.

I’ve tried to explain why a lot of people feel that intellectual property, and especially the strengthening of intellectual property laws, is downright evil. Many in the open source community (and outside too, in all honesty) would like nothing better than to tear down all the nukes altogether, and totally abolish the Cold War of knowledge. Others disagree.