Friday, October 25, 2002

Multiplying threads in the Lessig blogversation

Lawrence Lessig replied earlier this week with his latest entry in our long running blogversation on his concept of "opaque creativity." In his response, Lessig identifies a couple of separate threads of discussion and so I will, in my reply, try to organize my thoughts under each of these separate topics:

1. Economic Objective
Lessig starts his response on this issue "...let's get rid of a point on which there is absolutely no disagreement." Agreed, point dispatched. And no I won't go "pinko" on you :-) Read Lessig's post if you don't know what I am talking about.

2. The Regime
Regime is Lessig's word, not mine. I am more than happy to give up the word "property," although the convention is to call such things "intellectual property and I am not sure what value there is in simply changing the name which we give to IP. I do agree with Lessig's point that it is useful to differentiate between types of property. So for the purpose of this discussion, let's use the phrase "copyright property" vs. "opaque creativity property" or just OC property for which Lessig is proposing to have a different set of rights.

In this new response, Lessig has for the first time created a new category of intellectual property law, which shall apply only to opaque creativity. If I understand the proposal correctly, this new law shall provide for a "secret" deposit of the means of creation (source code in the case of software) and will provide for this material to remain secret for 10 years. Thus a creator of an article of opaque creativity would have protection for his/her work for 10 years -- significantly less even then in the original copyright law, much less the laws which Lessig has currently argued against that extend copyright to 70+ years. This then is the definition, in Lessig's argument, for what rights a creator would receive for OC property.

Lessig then misunderstood my next point. My proposition was that in Lessig's formulation of the problem, articles of opaque creativity did not seem to have ANY legal standing without the creator complying with Lessig's escrow program. Lessig writes:

Ted replies that "without the legal status of property," however, this is no real option, because the code protected by trade secret law could still be "endlessly copied ... with no need for access to the" source code. And hence, even if the source code were protected, there would be no protection for the real value of the program.

My concern about the lack of legal status is NOT in the case in which a creator participates in Lessig's scheme and therefore has the "source code" protected, but rather in a case in which the creator decided not to participate in the escrow program. I agree that if a creator participated in the escrow they would have their creation considered under the law as OC property which would receive the 10 years protection that Lessig proposes or whatever Congress and the courts deem appropriate. But the problem comes in when a creator does not escrow the source. In this scenario, as I understand Lessig's proposal, the article would not be considered copyright property, and would not be considered OC property. To solve this dilemma, Lessig introduces another new category of intellectual property law, which I have assigned its own topic. But I am also adding the tangential topic of the definition of property...

3. Property
I am not an expert in intellectual property law. Lessig asks to hammer out an agreement on the word property -- and I agree that this is very much at the crux of our disagreement. Lessig states that rights to different types of property differ radically across "properties." I agree entirely to this. However, there is one right which is uniform in my layman's use of the word property (although the length of time that this right is valid may differ based on which type of property). That right is ownership. When I call something a property, I expect that one or more people will have the right to own the property and the rest of the people will not. My complaint with Lessig's "regime" is that he would appear to take away my right of ownership over my creative activity if I do not consent to submit the work product of my creativity to a federal escrow program.

In the case of software, by the way, I am not certain that I agree with Lessig's statement that there are a "bundle of rights" beyond that right of ownership -- as the 1996 Supreme Court case between Lotus and Borland demonstrated. In that case, Lotus tried to sue Borland for infringing the "look and feel" of the Lotus spreadsheet. While the decision of the court did not become a binding precedent, it was a clear demonstration of how difficult it is for a software company to protect any other right than that of directly copying the software.

4. Not copyright protection, not OC property protection but...
Lessig goes on to state that he would consider giving "...the coder the protection of trade secret law, and it may well make sense to supplement that protection with a protection against mechanical reproduction of the digital object... As I have argued above, the only practical protection that the owner of opaque creativity has under current copyright law is the protection against reproduction of the digital object. I am not certain what Lessig may mean when he modifies reproduction with the word "mechanical" -- I guess this is a legal term, but hopefully we are talking about any means of reproduction, digital or physical.

My argument in comparing Lessig's proposal to "trade secret" vs. "patent" protection was this:

a) If I choose to protect my invention via a patent, I agree to have my methodology published but I receive a limited time monopoly for my product.

b) If I choose to protect my invention via a trade secret, I receive no monopoly -- meaning that anyone can attempt to reverse engineer my product and manufacture a competing product -- but I also do not have to publish my methodology.

There are two differences between this kind of law and that of "opaque creativity" as we have been discussing it:

1. In the case of a material product, one made of atoms and not bits, it is impossible for a competitor to make an exact duplicate of my product, for free. However, in this strange new world of bits, competitors can duplicate my product exactly and at no cost. Thus "trade secret" protection is really no protection at all.

2. In the case of a patent, I am being asked to divulge a "methodology" -- albeit one sufficient for an expert of my field to duplicate my creative output. Nonetheless, in the case of a patent the duplication is still necessary. In the case of Lessig's escrow, no duplication is necessary. The source code IS the product, it is not just the methodology for creating the product.

Perhaps I need to understand more fully what "extensive rights" copyright provides to a software developer. But it seems to me that the "trade secret" protection which Lessig offers has little or no value to the software publisher. The only value is in protection from duplication of the object code. The heart of my disagreement is to ask why object code shouldn't be protected from duplication for the same length of time as any other copyrighted material.

5. State as Software Publisher
I am sure I am just not good enough at explaining myself -- otherwise why would we continue to disagree on this point? I will try a much more thorough explanation of my point as I have to think that it has to do with a difference in Lessig's definition of source code and my own. Often we use metaphors to describe things and I think that it is easy to be lulled into the implications of the metaphor and miss understanding the thing itself. So, for example, some might say that source code is a "recipe" for a program -- implying that a cook still needs to gather ingredients, have equipment, have skill in cooking, etc. in order to make the meal that the recipe describes. In fact, the source code for a program IS the program.

Think of source code and object code instead as a phrase and its abbreviation:

1) Source code -- date of birth

2) Object code -- DOB

With a consistent set of rules (call it a compiler) I can always start with the source code "date of birth" and arrive at the exact object code "dob." In fact, computer programs wouldn't work if they couldn't be consistently compiled into the same object code (purists, please postpone a discussion of different competing compilers that output more or less efficient object code). The process of going from source code to object code can be made invisible to the end user -- in fact this is (in a certain sense) what happens with Java. In this case I have three steps

1) Source code -- date of birth

2) Java Byte code -- birthdate

3) Object code -- DOB

A developer uses a development tool like JBuilder to take their unique source code and generate Java Byte Code. An end user then performs the final "compilation" to make that Java Byte code run on a particular machine. I point out the example of Java in order to emphasize the fundamental point here -- the process of going from source code to object code can be made to be so trivial that a program's source code really is functionally equivalent to its object code. Thus the act of the State publishing a program's source code really will be equivalent to the State's publishing the object code.

This then is a very different situation than that of the published patent. In Lessig's scenario, the State becomes the authoritative distributor of the actual PRODUCT not just an instruction book on how to make a product. Perhaps this doesn't matter if the product doesn't have that one important right of property that I mentioned -- that of being owned. The one difference is that even when I make an object code copy of Lotus 123, it will still say Lotus, properly attributing authorship. If I have the source code, I can search and replace the word "Lotus" with the word "Ted Co" and quickly publish Ted Co 123. Now the creator has not only lost the right to own his creation, he has also lost the authorship of his creation. Surely no one is suggesting that I should be able to publish Gone With the Wind as having been authored by Ted Shelton. This raises yet another point -- that this is exactly what is made possible through the publishing of source code -- it allows a secondary creator to create an opaque work wholly from the source code of a prior opaque work.

In conclusion, Lessig asks if we agree on 1 and 2, and asks what he is missing on 3. His numbering of the issues is different than mine, nonetheless --

Issue 1 -- That the objective is to find the best incentives to "create and spread knowldge" -- Yes we are in agreement

Issue 2 -- This is where our numbering diverges as I think there is more than one issue here -- Lessig's proposed "regime" to protect OC property that participates in an escrow scheme, and extend some object code reproduction protection to OC property that does not participate in the escrow -- here we definitely do not agree. I think that the proposed "rights" for OC property are insufficient to attract a creator to Lessig's escrow scheme, and I do not sufficiently understand what protections he intends to provide to OC property if it is not escrowed. Furthermore, as I have stated in previous sections of this discussion, I think that there is an enormously problematic leap of faith in being able to say that one work is clearly worthy of copyright protection, and that another work must succumb to the rules of "opaque creativity." An example might be Toy Story -- Why shouldn't Pixar be forced to escrow all of the computer models that generated each frame of animation in order to receive protection for their work?

Issue 3 -- That there is a difference between the state's distribution of source code vs. the publishing of a methodology (e.g. patent) -- Here we also continue to disagree. Source code and object code are just two different ways of storing a software prduct. One is less opaque than the other. A methodology is just a set of ideas about how one should go about building a product -- it is clearly not the product itself. Even when the patent is a chemical formula -- it is not the raw materials of the chemicals, the process for converting those chemicals into a useable form, etc. -- it is not the product. Bits are different from atoms.

I fear that this conversation is now generating some side tangents that in themselves need to be resolved in order to have some agreement on the primary issue. And I don't have the sense that my core disagreement with Lessig's concerns about "opaque creativity" are resulting in a dialog about that key point -- instead the conversation seems to be moving toward specific proposals for how OC property rights will be handled, instead of discussing why OC property should be different from copyright property in the first place. I'd propose further discussion on "why" before more discussion on "how."

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