Re: [h2o-discuss] more edges to IPR

[j proctor <jproctor@oit.umass.edu>]

> But then isn't there a contradiction between considering it
> a trade secret, and trying to promote the progress of science
> and the useful arts by encouraging free publication of the
> work, and thus in return giving exclusive copyright?

Microsoft isn't interested in the progress of science and the useful arts.
I don't think they've ever claimed to be.  You and I are interested in
those things; Microsoft is interested in financial gain.  It is only by
convincing companies like Microsoft that the general public good (that is,
art and science) does actually work to encourage profit that we will ever
see willingly opened source.

Paper and lumber companies in the US, for instance, used to cut trees and
move on; now they replant--only by replenishing the environment that they
must destroy, necessarily, for income, can they guarantee that people will
be around to purchase their products, and that they'll have the raw
materials in the future to make those products.  This is not to say I
believe they're totally altruistic--I'm pretty sure there was legislation
that "encouraged" them to consider renewing their own resources.  But now
that they're doing it, they're very proud of it.  On the other hand, their
counterparts in Central and South America perceive limitless forest and do
things like strip mountains bare, which can result in horrendous
quasi-natural disasters like the mudslides last October.


> Could a book publisher attach a EULA to the book
> requiring a NDA before anyone could read it?

That's an interesting question.  Theoretically, I suppose so, although it
would be nearly impossible to enforce, and likely ignored as often as
commercial software licenses.  How to implement?  Shrink-wrapping at the
bookstore?  Sell only on-line, by registration?


> Further, I am not sure why publication of the source code
> ought to be considered a greater copyright infringement
> than publishing of the object code--you state that Microsoft
> would consider that to infringe on their ability to do
> continuing business.

I think they're different, but I'm having a hard time explaining why.
Perhaps it's time for another analogy.  When King James translated the
Bible into English, he damaged the ability of the church to control the
people.  It was, like source and object code, the same information, but
one was orders of magnitude more accessible than the other, measured
simply by the number of people (literate vs. literate in greek & latin).  
By distributing the object code, you simply steal from MS; that's the
product they lease you the right to use when you "buy" the software.  By
distributing the more accessible source, though, you damage their ability
to control the consumer--they no longer have the secure feeling that no
one will find and exploit the bugs, they no longer have the upper hand
because anyone with a CS degree can sell a better product (say, the "New 
International Version") for less.


> There is a good reason for requiring deposit of the
> source code:  the work needs to return to the public
> domain when the term expires.  How can it do that if
> only the object code is published?  What if the
> corporation holding the copyright goes out of business
> and customers can no longer get in touch with the
> copyright holder, even if they wanted to buy the
> source code?

Hey!  There's that abandonment question again!  I should've know you'd
work that in somehow. 

The assumed eventual return to public domain is the best reason you gave
for requiring the source be part of a patent or copyright.  I don't know
all the legal details, but I know there is such a thing as a court-sealed
document.  I don't know whether such a thing could be applied to a
copyrighted work, but I suspect that's one possible resolution.  The court
recognises that the copyrighted work represents a trade secret, and so
basically sticks it in a time capsule in the LoC.  When the time expires,
it's public.  The code for Win 3.1 may be intensely fascinating to a
historian in 2260 (allowing for a couple more Bono-flavoured extensions
and at least one protracted legal battle after that), or it may be utterly
worthless or worse--completely unreadable by any existing technology.


> So I am back to puzzlement why the source code and object
> code should be treated differently under copyright law,
> and why the copyright and the artifact could not be
> separated legally, as in the Zapruder case.  I have
> tried to lay out a scenario where the separation might
> indeed be required for the survival of the public interest.

I believe the issue is access.  If you have only the object code (Greek
and Latin), then Microsoft (the church) controls what you access, how you
access it, and how it's filtered for your consumption.  If you have the
source code, the KJV, then *you*, Mr. Above-average Literate, know that
selling indulgences is more like fleecing the flock than shepherding them,
and will likely start to take steps to improve things at the expense of
the existing power-holder.

So even though a Washington resident's life (or eternal soul) is at stake,
that's simply less important to MS than their power and profit structure.  
Microsoft does not believe that their interest and the public interest are
the same, and they will pursue their own first until some higher power
forces them to stop.  We who believe that they should find a new interest
in actually improving their product and thereby the world of computing
(rather than just trumpeting how wonderful their broken software is) must
now either educate the government or the free-ish consumer market to take
control as that higher power.


j