Lessig and Copyright and Software and Stuff

Ealier today I posted this quote from Lawrence Lessig's /. interview <via bb>: "Again, there are many others who are better at this pragmatism stuff. To me, it just feels insulting. You want to tell the Alice Randalls of the world that they need the permission of a lawyer before they can speak? I want you, Jack, to justify that rule. You tell me I have to justify Alice Randall's right to speak? I want to say in response something we lawyers don't say enough: Bullshit." Which I thought was beautiful (and said so).

Then Dave pointed me to this Wired magazine piece, where Lessig argues for substantially reduced copyright protection for software. To which I need to respond: While I agree with some of this larger points—95 years of protection for software is probably a little excessive (as it is for probably everything else)—I don't buy all his arguments and remedies.

For example, Lessig states, "Like authors and publishers, coders (or more likely, the companies they work for) enjoy decades of copyright protection. Yet the public gets very little in return....Worse, the copyright system safeguards software without creating any new knowledge in return." The public gets very little in return? What about the ability to use a product that may have cost millions of dollars to create for a tiny fraction of that? How about increased productivity that bolsters the economy? How about the freedom to express themselves more easily or manage their finances? How about the new art that software helps create? How about access to tens of thousands of useful/interesting/entertaining programs that wouldn't exist otherwise?

His argument seems to be based on the premise that value and knowledge can only be derived from software by having access to the source code. This is silly. Why do people pay for software, then? And from the knowledge side, software developers are always learning and borrowing ideas from other software just by looking at the finished product, what it does, and how it does it. The big or original ideas are hardly ever buried in the nitty gritty of the code.

As for the loss to computer science study, I find it hard to believe that digging through the code of commercial software would be the most fruitful way to learn fundamentals of coding. (The thing that may be instructive is to see how messy the code of most commercial products are, unlike the examples in books.)

I do agree that it would be nice in many cases to have the code to abandoned projects opened up for further development. This is similar to Lessig's argument about old, out-of-print books:

In 1930, there were 10,027 books published. Today, 174 of those books are still in print. Yet it would be illegal because of copyright law for Michael Hart of Project Gutenberg to take those 9,853 books not in print and make them available on the Internet for free - at least without tracking down the present owners of those copyrights and getting permission.

But I chafe a little at the idea that you register the source with the goverment for release when its time is up. Perhaps it's the most practical way to do it. But that brings up another question, if we're talking about praticality: How are the times Lessig talks about measured? He describes publishing software like publishing a book or a movie—something you do once, when it's finished. But software evolves. How do you account for bug patches, new releases, etc? I suppose each release has its own copyright. (And, under Lessig's suggestion, each must go through the registration process? Ugh!)

(Of course, thatn doesn't address subscription-based or hosted software, or other increasingly common scenarios where the software is incrementally evolving with no real "releases." Perhaps it doesn't then need copyright protection, because it's a service, not a product that can be copied and distributed? But wait, does that mean if someone obtains a copy of the software that delivers the service [legitimately or otherwise] that it cannot be protected?)

To use Lessig's suggestion for a limit of 10 years copyright protection for software, Adobe Photoshop 1.0 would have lost its copyright in February of last year. Among many other still-commercial products, I believe Userland Frontier is over 10 years old, as well. How much of the code from these first version is relevant today? Would the release of this source be detrimental to further development of the product—or helpful? I don't know. But I do know that it's more complicated than Lessig makes it out to be.