Lessig blogs back

I am a few days behind (things have been busy) but I wanted to get at least some brief comments back on Lawrense Lessig's latest response in our long running debate about "opaque creativity."

Lessig reasonably criticizes my rhetorical device of suggesting that placing source code in the public eye is equivalent to a writer having to make public the thought process behind his/her work. But in doing so he ignores the underlying argument and the analysis of what "derivative works" means in the case of software.

One of the valuable parts of this discussion for me has been in refining my thinking on this subject. I have had an intuitive feeling that there is something wrong in Lessig's call for source code escrow -- and not the least of which is my concern about giving governments too much power. I have some more work to go in my thinking, but I am close to having a good formulation of the core issue. Here is an attempt at a clear statement of my thesis:

Software is not a narrative. Software is a machine

Narrative is not quite the right word (it doesn't capture songs for example) but it is getting close. Where Lawrence Lessig and I agree is that copyright law intended for narrative forms of creativity -- books, movies, etc -- is not adequate for software. Where we disagree is what the remedy should be. Lessig would require that the machine be given away for free after some period of time. In my view this appraoch is too extreme. That it gives away the algorithm along with the implementation and that software developers (like mechanical entrepreneurs) should not be required to give away their algorithms.

I will spend some more time on the formulation of this and post a longer note soon.