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Re: Copyright Misuse Doctrine in Apple v. Psystar

From: Alan Mackenzie
Subject: Re: Copyright Misuse Doctrine in Apple v. Psystar
Date: Tue, 24 Feb 2009 13:35:17 +0000 (UTC)
User-agent: tin/1.6.2-20030910 ("Pabbay") (UNIX) (FreeBSD/4.11-RELEASE (i386))

In gnu.misc.discuss amicus_curious <> wrote:

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

>>> "Alan Mackenzie" <> wrote in message
>>> news:gnujma$19h9$

>> 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, i....

Just as an analogy.  Tax swindlers (whether legal or not) take without
giving, a bit like "code swindlers", who take open source code without
giving their bit back.

> 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.

When they take commonly owned source code, built by the labour of
thousands, yet aren't prepared to give their bit back?  People like that
have never been much loved.  Imagine a village festival where everybody
brings their produce in for a massive feast.  Now some people won't have
anything to give, but they'll be there with their neighbours.  Fair
enough.  But a prosperous farmer who is too mean to contribute, yet comes
to the feast anyway won't be liked, will spoil the occasion, and might
even be excluded.  This is analogous to the person who adds his bit onto
free code, presumably to make money, but won't contribute it back to the

>>>> 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
>>>> OS/X.

>>> 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
>> stinks.

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

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

> But not legitimately, I understand.

That's under contention in an American court at the moment.  Should it be
legitimate for a software manufacturer to dictate what sort of hardware
his software package may be run on?  I don't think it should be.

> 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.

FreeBSD is comparable to GNU/Linux, and ought to be a strong competitor
for it.  For some reason, it isn't.  Not sure why.  It could be because
the BSD license disadvantages it in some way compared with the GPL.

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

>> 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.

There's no reason why FreeBSD couldn't be packaged up in a box and sold,
with installation support, for 70 Euros the way GNU/Linux is (or was
until recently).  Red Hat and SuSE have done this profitably for 15
years.  Or even why you can't buy FreeBSD, with full support, for several
hundred dollars per box.  Maybe you can, but I've not heard of it.

>>> 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.

So, what would count as a sizable opportunity in this context?

>>>> 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
>>> innovation.

>> 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.

OK, "misappropriate" needs quote marks here.  They broke the gentlemen's
understanding that surrounded the code base, namely that the code base is
commonly "owned"[*] and each has an obligation to maintain and enhance it.
As a result of this breach, some coding ended up having to be done twice,
a stupid waste of productive capacity.

[*] The copyright was actually held by MIT.

The GPL was a remedy for this problem, making what used to be a
"gentlemens's understanding" into a firm legal obligation.

>>> 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?

I suppose that's fair enough.  If the system with your addition brings in
revenues of $100,000, and your bit is 0.1% of the system, then it's fair
for you to keep $100 and forward the other $99,900 to the other
developers.  But outrageously cumbersome and impractical.  Instead you're
expected to contribute your code, so that everybody can take advantage of
it, just as you took advantage of theirs, and you keep the entire

>>> 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
>> effort.

>>> 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?

Yes, of course.  But it was free software.  There were a few proprietary
networks around at the time too, but I've forgotten what they were, just
like everybody else has.

>> 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.

It is a fantastically easy to use, flexible and efficient program, but at
the same time unusually difficult to learn.

> 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?

Python isn't GPL, no, but it's free software.  It dates from a time
before the GPL had really got going.  Ruby is GPL'd, though.

> 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.

You might be right, there.  But the solid, basic, durable programs are
mainly FOSS.

>> 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.

I said anything _decent_.  ;-)
Alan Mackenzie (Nuremberg, Germany).

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