Re: Copyright Misuse Doctrine in Apple v. Psystar

[Alan Mackenzie]

In gnu.misc.discuss amicus_curious <ACDC@sti.net> wrote:

> "Alan Mackenzie" <acm@muc.de> wrote in message 
> news:gnujma$19h9$1@colin2.muc.de...

>> Well, thanks, and all that, yet again!  I'm happy for people to learn
>> about my code, and modify it.  I would NOT be happy about somebody
>> starting off from my code and building their own proprietary stuff based
>> on it.  I'm just not keen on being taken advantage of, of being
>> exploited, thank you very much.  However, if that somebody contributes
>> his enhancements back to the project, we all win.

> It would seem to me that anyone wanting to be of service to the world,
> as the FOSS advocates claim that they want to be, would not be so
> resentful of the rest.

Speaking for myself, I'm not resentful of "the rest" as such.  As a
taxpayer, though, I am resentful of people who take advantage of what
tax provides, without themselves contributing their fair bit.  "Tax
avoidance" is the usual euphemism for it, but swindling is what it is.
In just the same way, I'd resent people abusing my blood, sweat and
tears, by taking my stuff as their own and not giving anything back.
Surely you can undertand this attitude?

> If you resent someone else making money, what is the solution?  That
> no one make any money?

I don't resent the making of money.

> That is not good in the long term in a society where the money keeps
> the economy strong.

Hahahaha!  That's a good one!  It's probably truer to say that we both
live in a society where money has made the economy weak, very weak
indeed.

>> I asked you a while back to consider why the GPL is such a popular
>> licence for free software.  The above is one answer.  Hackers are happier
>> contributing their skills when they're confident they're not being used
>> as unpaid labour for Megabucks Incorporated.

>>> I do not know of any opportunity for anyone to take an open source
>>> product and convert it to commercial, proprietary use.

>> Really?  Apple saw fit to take the BSD kernel and use it as the basis of
>> OS/X.

> But they really do not sell it on the open market like Windows.

Well no, but that was the conversion of OS to proprietary use, exactly
as you stipulated three paragraphs up.  Also, having taken BSD licensed
open source, they are trying to stop Psystar making use of it, despite
Psystar being prepared to pay hefty licensing charges.  That kind of
stinks.

> They sell a comprehensive solution that is dependent on their hardware,
> just like Actiontec sells a router as a comprehensive functional
> device.

No, actually, OS/X isn't dependent on Apple's hardware.  It will run
happily on a Psystar box.

> What is under the hood is not important, rather it is just part of the
> package.

I'm not quite sure what point you're trying to make here.

> Also, this is not much of an opportunity.

I'm sure using BSD saved Apple hundreds of millions of dollars
development costs.

> If you own an extensive hardware manufacturing company such as Apple,
> you can avail yourself of the freeBSD and save some R&D bucks for your
> overall product.  But that is a very limited opportunity as
> opportunities go.

Doesn't seem that limited to me.  What would count as a sizable
opportunity in this context?

> Very few have such a resource to use to leverage success.  Certainly
> Red Hat and other Linux suppliers of commercial distributions took
> similar advantage of the "free" as in beer cost of Linux, too, but you
> have to invest a couple of billion overall in infrastructure in order
> to tap that well of opportunity and they are essentially competing as a
> low price provider in the Unix server market, which is not such a
> wonderful place to be.

I believe Red Hat employees make a good living.  Having low cost servers
available is good for society in general.  It enables us to prattle on at
eachother, for one thing.  ;-)

> The improvements to Linux seem to come from the original project team
> or else from the commercial suppliers like Red Hat who have a means to
> extract a financial benefit from their efforts.

The "original project team" isn't a meaningful phrase.  Anybody who
contributes to Linux is a part of the "project team", and the bulk of
the people on it will drift in, do something, drift out.  Hardware
manufacturers obviously gain financially by contributing drivers for
their hardware.

>> Are you aware of the case that sparked the GPL into existence?  The Lisp
>> Machine had been developed at MIT as a fully open system, much as you're
>> advocating at the moment.  In the mid 1980s, some of the collaborators
>> left MIT, forming a company, Symbolics, to market their own Lisp
>> Machines, using the unrestricted code from MIT.  They made proprietary
>> enhancements to it, gaining an unfair advantage.  This created a great
>> deal of resentment in those left behind, among them Richard Stallman.

> What should these folk have gotten in return for their innovation?  I
> am not at all familiar with the details, but it seems to me that anyone
> who is clever enough to invent something that others can use and that
> other appreciate enough to pay for deserve the fruits of their
> innovation.

They should get the profits from providing high quality products to
appreciative customers.  You don't have to misappropriate common
property to achieve this.  Again, gen up on the history.  It will help
you understand the GPL.

>> One of the GPL's major goals was to prevent the like happening in the
>> future.  Look up the history of the MIT Lisp Machine, Symbolics, Lisp
>> Machines Inc., and you might come to understand the GPL better.

> Exactly true, I think.  I do not subscribe to the "opportunity is an
> evil" theory, though.  Someone has to be smart enough to see an
> improvement and talented enough to implement it and dedicated enough to
> promote it.  They deserve the reward.

Who's arguing?  But if they've put in 0.1% of the effort, they deserve
0.1% of the reward.  They tend to keep all of it, though.

>>> The big projects, say Linux itself or OO or the GNU utilities, are so
>>> complex to begin with that I don't think it would even be possible to
>>> do that.  If someone did made a significant improvement to Linux or OO
>>> or any other FOSS project, I think just knowing the nature of the
>>> improvement would be enough of a revelation to allow it to be
>>> replicated separately.

>> Indeed, RMS was able to duplicate the enhancements made by the Symbolics
>> team.  But it's a stupid waste of effort to do things twice, when
>> there're so many fresh things to be done.

> My view is that the history of FOSS is pretty much duplicating something 
> that is proprietary.

In some cases, yes.  Proprietary software causes waste of time and
effort. 

> I am sure there have been one or two things spring up on their own, but
> I can't think of any offhand.  Can you?

You mean original stuff as free software?  Loads of things.  How about
the Internet?  The RFC's, TCP/IP, you name it.  Proprietary software is
unneeded on the Internet.

Lots of high quality programming languages (Perl, Python, Ruby, Haskell,
Ocaml, ...), Emacs (though in the last few years, other editors have
caught up to a large degree).  Version control systems.

Practically anything decent to do with software development originated as
free stuff, or if older, from the Unix tradition.

I'm not that familiar with other areas of software.

> Stallman seems to see profits from innovation as something to eradicate.

No, not at all.  Rather the profits from innovation are maximised by
that innovation benefitting the whole of society.

> His reaction to Symbolics success was to try to put them out of business. 
> That seems even more stupid.

Yes, I worked for a firm intended to be a competitor to Symbolics, and
RMS was helpful to us indeed.  That firm folded, though.  However his
hostility was motivated not by their making profit, but by their ratting
on their social obligation (as he saw it) to maintain the common code
base.

-- 
Alan Mackenzie (Nuremberg, Germany).