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Re: Copyright Misuse Doctrine in Apple v. Psystar

From: amicus_curious
Subject: Re: Copyright Misuse Doctrine in Apple v. Psystar
Date: Mon, 23 Feb 2009 17:01:17 -0500

"Alan Mackenzie" <> wrote in message news:gnv0cu$28je$
In gnu.misc.discuss amicus_curious <> wrote:

"Alan Mackenzie" <> wrote in message

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?

I don't see where being a taxpayer has anything to do with this, but clearly you are resentful as in "I would NOT be happy about somebody starting off from my code and building their own proprietary stuff based on it...". After all you are "happy" that you have been of service teaching someone something by means of your source code. Why would you suggest that someone who, having learned how to do something useful, improves upon it is a swindler? Ingrate, perhaps, although that is a stretch, too, but not a swindler.

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

The president of the USofA said that the economic crisis was primarily due to the tightness of money and vowed 750 billion to loosen it up. Do you know more than he does?

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

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

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

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

But not legitimately, I understand. However, that was not the crux of the argument. The main point is that freeBSD is not very useful to anyone who does not have a hardware business that can use it. Very few, if any, have that advantage.

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

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

The freeBSD in a proprietary can only be sold profitably along side of a suitable hardware platform.

Also, this is not much of an opportunity.

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

Which is an opportunity limited solely to Apple.

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?

There are billions of people in the world and only Apple can capitalize on this item. They saw it as a great opportunity, no doubt, but it is not open to anyone else.

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

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.

They didn't misappropriate anything. They added their own work product to what already existed and charged a little extra for its use. Why would the price charged for the basic platform have anything to do with the price for the add-on?

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.

Things are worth what people value them at. If I add something to Linux that is worth $100, do I not deserve the whole hundred? How do you value effort anyway? Surely some people's efforts are more productive than others. Should they be equated on some basis other than customer value? If Einstein takes 10 minutes to solve a problem and Joe Schmoe takes a 100 hours, does Joe deserve 600 times more pay? That has not been the conventional wisdom here.

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

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.

Well that was back in the really old days to begin with and I think the developers were being paid by someone. The government, I think. DARPA?

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.

Emacs seems kind of confusing and no one here uses it AFAIK. There are some non-MS editors that a few swear by, Slick is the name of one such. I think that some of the IT weenies use Python to implement some of the build utilities here. Is that a GPL thing?

In any case, I am willing to concede that there are original works that are open source and always have been. But the steak is sold by the sizzle and all of the sizzle these days seems relatively proprietary. And then it is followed by an open source effort to duplicate the feature, function, and look and feel.

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

I like .NET and Visual Studio, of course, and if they originated with Unix, they have come a long way since.

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