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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: Tue, 24 Feb 2009 09:47:59 -0500

"Alan Mackenzie" <> wrote in message news:go0t2l$12pe$
In gnu.misc.discuss amicus_curious <> wrote:

"Alan Mackenzie" <> wrote in message
In gnu.misc.discuss amicus_curious <> wrote:

"Alan Mackenzie" <> wrote in message

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.

Well, that is hardly equivalent. Someone cheating on taxes is working with money which has a common valuation and some rather strict laws with clear metrics. Someone using a GPL program is in no way obliged to do anything in return and 99.99% or more do not, if you consider, say, how many people have actually contributed anything to Linux versus how many use it directly.

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

There is a big distinction, I believe, in terms of the value of that source which you want "given back". If someone has merely fixed a few defects in the original, it is reasonable to do that and the person is most likely motivated to do so. If someone invents a truly useful functional addition, which they would have to do in order to make any idea commercially viable in the first place, that is more in line with a new work rather than a logical extension of the original regardless of the way that the original might have been incorporated into the new work. Using your analogy while not admitting to its being particularly pertinent, it could be like a villiage festival where everyone brought a covered dish and the prosperous farmer was told that he had to provide the champagne and steaks and pay for the charcoal to grill them with.

Your analogy suffers, too, in that the FOSS festival is advertised as "bring a dish if you want to share, but come one, come all for the feast!" Perhaps the prosperous farmer only wants a dab of mashed potatoes to put on his own plate of prime rib that he brought for himself, and, as soon as he does, everyone demands a piece of his meat.

I don't really see much danger in any of that happening, as I have said elsewhere, but I think the philosophy of the GPL is wrong at its core. If FOSS were about sharing, that is something that can be supported, but it has become about donating and with the court actions it is coming closer to the taxation of which you speak.

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
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.

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.

It is a simple matter of contracts. You are not allowed to use a $17 DVD to show a video picture in a theater and charge admission, for example, or are not allowed to use a 99 cent track from Apple and broadcast it on a commercial radio station. If Apple wants to restrict the use of their product to specific circumstances, they have that right to do so. The GPL has the same right, of course, and it is only a matter of what civil action might be taken in the case of a violation. With Apple, they can show that they lose a certain amount of trade in their own hardware and that has a value to be assessed against Psystar. With the GPL, it is much harder to show that any damage has actually accrued to the copyright owners. We get into the arena of hurt feelings and some loss of prominence rather than any financial impact, which is the traditional way of assessing damages and compensation.

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

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.

If you could do it at a profit, you should do it, but that is the crux of the problem. There would be a need to establish a market for the package and that would cost a lot of time, effort, and money to establish. Then, without any sort of protection for your product's code, many others could duplicate the package and offer it at a lower cost since they would not have to recoup the costs of educating the consumers. Windows was grown, as a business, over almost 20 years if we count Win3.0 as the first real Windows product. Over that time the brand has grown to be a massive element. Prior to that, MS-DOS had established the same brand recognition. Just as others could not sell their DOS work-alikes in the face of the MS-DOS brand, no one, even IBM with OS/2, can effectively compete with Windows today.

Apple has made a small dent in the public's recognition, but not really at the OS level, I think. People buy Macintosh computers for a variety of reasons, generally paying a premium over a more or less equivalently featured Wintel machine. A lot of that is just good old luxury goods marketing image setting, i.e. a suave fellow cruising through life as opposed to a nerdy fat guy stumbling along with problems deftly avoided by the more worthy Mac. And he has his iPod and iPhone too.

But how do you differentiate Linux, or freeBSD for that matter? Answer: price. Now many people are price conscious and it is becoming more and more of a concern in many places, but low-price suffers a lot because almost everyone has an inherent belief that "you get what you pay for" and paying less means getting less. When it comes to a luxury good or even what is termed a "shopping good", price is a lousy differentiator. In a commodity situation, it might be more useful, but computers have not moved to that class yet. So the public image of Linux, where there even is one, is that it is a low-end substitute for Windows. The netbooks, for example, are about $25 to $35 cheaper than XP models with the same specifications otherwise. Bundling of options with XP generally makes that a $15 difference or even less. Who is going to take much of a chance for that little return? And even if some do, the overall image is that Linux is inferior. "Good, better, best" is the way such products are marketed, and Linux never makes it out of the "good" collection. "Better" and "best" all seem to have XP installed.

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

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.

That is one way of looking at it. Another is that the GPL prevents an entrepreneur from offering a superior product at a fair value and so stifles creativity. If I have something better than the free version, I cannot sell it, the GPL says, rather I have to offer the improvements to anyone and everyone. In exchange for not having to expend a little "productive capacity" to replicate some existing, free to the world to use, code, I have to offer my unique innovation for no return.

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

That might work for a system situation where the customization effort provides the product value and that is perhaps the best chance that FOSS has in the world since any individual set of changes is only used once. If it looks like a product situation, though, where the change will be used in many separate instances, the cost of using the FOSS original is vastly overshadowed by the value of the improvement.

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?

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_.  ;-)

Well, be that way, but, when you get a chance, download the free, as in beer, Visual Studio Express C# version and MS SQL Server 2008 Express, and build yourself a highly secure client/server system in a couple of hours to see where it can take you.

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