Two Copywrongs Don't Make a Copyright

Late April and early May constituted another amazing month news-wise. The government urged the court to divide Microsoft in two, the "Love Bug" virus and its evil siblings re-taught us the old lesson that you shouldn't open attachments unless you're sure about them, Microsoft showed us a new way to keep a trade secret—by posting that "secret" (its Kerberos implementation) on the Web, and MP3 lost its copyright case. Whether it's because of MP3, Napster, Linux, or open source, worldwide networks are clearly forcing us to rethink copyrights. Last year's Digital Millennium modifications to the federal copyright laws and this year's Uniform Computer Information Transactions Act (UCITA) proposals in all 50 state houses are attempts to reshape intellectual property laws to a wired world.

I can't say that I'm a big fan of either Digital Millennium or UCITA because I feel that they target the wrong aspects of copyrights, but let's consider what seems reasonable to protect. For example, Digital Millennium's prohibition against reverse engineering seems to counter the standard thinking in intellectual property protection. The original idea behind patents was to let an inventor create a device and have both the society and the inventor profit from it. To get the patent, the inventor revealed how the device worked; in return, the inventor was protected from others copying the device. Society got the benefit of the device because without that protection, many devices would never come to market. And society also got a peek at how the device worked, so other technicians could benefit from the inventor's insights. It seems to me that software should work the same way: If you want society to protect your software design from theft, show us what you did.

But outlawing reverse engineering has some potentially chilling effects. For example, suppose I want to write a printer driver for Windows using only the developer information that Microsoft provides— only to find that I can't make the driver work because of some incomplete Microsoft documentation? If I can reverse-engineer another printer driver, I can see what Microsoft didn't tell me. The alternative—waiting for Microsoft to answer my developer questions about printer drivers—might be expensive and time-consuming, with the result that I might not be able to achieve an essential time-to-market. Nor is this a fantasy: I chose an example that actually happened to an associate years ago. Prohibitions on reverse engineering let software companies build products around proprietary standards that no one can understand without source-code access. Imagine if the only people who knew how to do an HTTP transfer worked for Sun Microsystems: How many Web-server products would be available? And how many of them would be free? Copyright has always been a way to protect a particular EXPRESSION of an idea—not the idea itself. Thus, no one should be able to control the idea of the Web or HTTP; however, everyone who sits down and creates a piece of Web-server software should be able to keep others from stealing it.

On the other hand, I have tremendous trouble with those who argue that if it's on the Web, it can be freely copied. What's even more astonishing is that those people claim that they're championing "freedom" of some kind by stealing copyrighted works, claiming that "information wants to be free."

I'm not a musician, so I can't speak to the level of difficulty involved in creating and performing a musical work, but I've created books, magazine articles, and commercial software, so I speak with authority when I say that it's not easy to create commercial-quality intellectual property. Writing books, articles, and software takes time, effort, and capital investment. No one's going to take the time, make the effort, and invest the capital if the end product is free for the taking. Imagine, for example, the effort involved in writing a great book about, say, Windows NT clustering. You'd need about $20,000 in hardware and software plus time to learn about the topic, then plenty more time to figure out how best to structure the information so that most readers could benefit from your explanations. Only then could you start writing. It's hard to imagine anyone putting that kind of blood, toil, tears, and sweat into such a book without the promise of financial return.

Don't misunderstand me; I'm not arguing against free content. For a variety of reasons, some people create and give away free software, text, images, and music. For a long and interesting discussion of why it sometimes makes sense to give software away, read Eric Raymonds' series of essays on the topic in "The Cathedral and The Bazaar." It's published by O'Reilly, and—sadly—they charge for it. But buy a copy anyway—it's worth it. Many people not only think that intellectual work should be free but also back up the idea with their own content—and my hat's off to them.

As the economists say, there is no such thing as a free lunch (TINSTAAFL). In a world in which content creators can't profit from their creative works, they won't create those works unless they have an alternative agenda or someone with an agenda pays them. Someone has to pay for the artist's time to create the work, and someone has to pay to keep the Web servers up to hold the free-for-the-taking content. After all, think of all of the free content large corporations and foreign and domestic government agencies offer.

Imagine a world in which it's impossible to make a living writing about technical topics because readers aren't used to paying for content. My guess is that the only places to get information about Microsoft products would be either from Microsoft or from its major competitors, such as Sun, Novell, and Oracle. Afraid yet?

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