Some commercially distributed films are preserved. Studios that see no potential for profit in doing this work will (and have) let films disappear, rot never to be seen again. Copyright law protects their efforts—as long as the movie is under copyright, nobody may duplicate the movie without the permission of the copyright holder.

Interest in some movie stars is rejuvenated due to long-lasting movies. The revival of Louise Brooks’ professional movie career came from viewing and screening movies that had not been screened for 30 years. Some of her earlier movies were lost before preservation work could help save them.

How many more Louise Brooks movies might be enjoyed today if people had been free to make copies and preserve the work?

Much of what Hollywood studios argue for in copyright law is done in the name of supporting the actors. The Screen Actors Guild 90+% unemployment rate tells another story. And from a copyright perspective, how many other actors’ work would be saved if we had a more permissive copyright regime, one which allowed verbatim non-commercial copying and distribution of all published works?

Is it possible to assess how much damage is being done to our culture people by the heads of the MPAA?

The MPAA will soon make another round of lectures at colleges and film festivals as the upcoming “P2P” US Supreme Court case goes on and they’re sure to bring on the publicity as the time for another copyright term extension comes around. I encourage you to be there so that you can challenge copyright terms that conflict with what copyright is there to do and how long the term of copyright ought to be.

Gervase Markham asks “wouldn’t that be a great slogan for Firefox? “Firefox. Socially responsible browsing.” and Josh Aas, a Camino developer, responds that introducing some Free Software talk is something they “need to do a better job of”.

It would be a nice slogan for Firefox. But if the Mozilla Foundation has something to say about it, it won’t happen. The Mozilla Foundation is committed to the open source movement. The Open Source Initiative tries very hard to frame the debate in a way that pushes aside software freedom. I recommend reading the most insightful and respectful essay I’ve read on the difference between the two movements and why the differences matter.

I think it would be wonderful to see more programmers and more projects actively promote paying attention to software freedom and write some freedom talk. But instead I see many programmers become proponents of a message crafted to speak chiefly to business, a development methodology. The watered-down message of the open source movement is more widely circulated in the business press because it was built to be attractive to them—we can get hackers around the world working on our programs without paying them?

Faster development, fewer bugs, doing good development work for less money: these goals don’t address important ethical matters and they don’t necessarily give me the freedom to share and modify software. I have no problem with less buggy software which is developed faster and I want poor hackers to be able to hack and earn a living wage for it. There’s nothing wrong with running a business hacking software either, but the root problems for software development involve giving users rights, not catering to business all the time.

Earlier, I discussed IBM’s patent pledge and I encouraged you to be careful of what you’re giving up in exchange for your continued access to the 500 patents IBM promises not to sue you for infringing. IBM is not offering you a gift. You are not getting something for nothing. Using the language of the pledge, and describing the pledge in the best possible situation, you are getting increased access to 500 patents in exchange for not defending your “intellectual property” rights against “Open Source Software”. As you can see, the exact terms of the bargain are unknown because IBM expresses them in overgeneral and prejudicial language. It is to their benefit to do this so that they can discontinue the pledge against anyone they wish at almost any time.

I have improved upon my framing of this issue, a frame which I haven’t seen anyone else pose, and which concisely states my rationale for why this promise isn’t nearly as important as the mainstream tech press says it is.

IBM holds more patents than any other patent holder. In 2004, IBM was awarded 3,248 patents; the most of any patent holder for the twelfth consecutive year. In order to practically assess IBM’s pledge, I would like to know how much less risk I face of losing a patent infringement lawsuit as a result of this pledge. What program(s) might I deal in which (1) implement patented ideas listed in the set of 500 patents included in IBM’s pledge, and (2) do not implement ideas covered by other active IBM patents?

The answer to the question will describe a set of programs. The size of the set is directly proportional to the utility of IBM’s pledge—the more programs in the set, the more useful the pledge.

If the set has no programs in it, IBM’s pledge is useless. There is no sense in trading away anything in exchange for nothing.

If the set has just a few programs in it, IBM’s pledge is useful, but not very useful. It is unlikely that trading away enforcement of one’s rights will be rewarded by dealing in the 500 patents.

If the set has a lot of programs in it, IBM’s pledge is quite useful. In this case, it may be a good idea to trade away enforcing one’s rights to gain access to these patented ideas. Whether trading away one’s rights is worthwhile depends on the value of the rights one is asked to trade away (which implies learning exactly which rights one is asked to trade away, talking about “intellectual property” rights won’t cut it), and for how long one is asked to suppress defending these rights (ostensibly, for the duration of the 500 patents).

If we don’t assess the value of the patent pledge, we can’t know if it is good. If we don’t know the pledge’s value, we have no business recommending its use to anyone or celebrating its existence. I understand how oppressive it is to live with software patents (also called “software idea patents” which might be a more useful phrase because it reminds the listener that what is covered are ideas, a much broader scope than covering computer software programs), but we can’t afford to look at IBM’s pledge as a favor until we understand the strings attached to this promise.

IBM recently made a pledge to what they call “open source software” developers. If you’re new to this concept (or if you think you understand what the term “open source” means), I strongly encourage you to read about the differences between the open source and free software movements. Fellow blogger featherston has commented on the IBM patent pledge as well.

What’s the catch?

Read the final paragraph of the patent pledge and consider how many rights you have to agree to not prosecute over before you take IBM up on their promise.

Warning: knowingly infringing upon a patent carries a higher penalty than unknowingly infringing upon a patent. You might not want to read the original document (which lists the 500 patents covered in IBM’s pledge) but instead read only the revocation clause on the last page of the pledge. I’ve quoted the last paragraph of the pledge below for just this reason. All spelling and punctuation is in context. Emphasis is mine.

“IBM’s Legally Binding Commitment Not To Assert the 500 Named Patents Against OSS The pledge will benefit any Open Source Software. Open Source Software is any computer software program whose source code is published and available for inspection and use by anyone, and is made available under a license agreement that permits recipients to copy, modify and distribute the program’s source code without payment of fees or royalties. All licenses certified by opensource.org and listed on their website as of 01/11/2005 are Open Source Software licenses for the purpose of this pledge.. Subject to the exception provided below, and with the intent that developers, users and distributors of Open Source Software rely on our promise, IBM hereby commits not to assert any of the 500 U.S. patents listed above, as well as all counterparts of these patents issued in other countries against the development, use or distribution of Open Source Software. In order to foster innovation and avoid the possibility that a party will take advantage of this pledge and then assert patents or other intellectual property rights of its own against Open Source Software, thereby limiting the freedom of IBM or any other Open Source Software developer to create innovative software programs, or the freedom of others to distribute and use Open Source Software, the commitment not to assert any of these 500 U.S. patents and all counterparts of these patents issued in other countries is irrevocable except that IBM reserves the right to terminate this patent pledge and commitment only with regard to any party who files a lawsuit asserting patents or other intellectual property rights against Open Source Software“

Typically, you want to keep the power to assert your rights under law. This is not something you should trade away without serious consideration. Asserting your “intellectual property” rights is no different.

To remain in IBM’s good graces, you would have to give up asserting your rights against another “open source software” developer. Perhaps some other “open source software” developer is distributing copies of your blog in a way that you haven’t licensed them to do. Maybe someone is building on a photo you’ve taken or an essay you’ve written but they’re doing so without your permission. In other words, perhaps an “open source software” developer is doing something to you that is illegal, should be litigated, and has nothing to do with computer software.

It’s quite easy to gain a copyright (commonly viewed as one of the so-called “intellectual property” rights) on something. All you have to do in most countries is write something in a fixed form (saving your document on your computer’s hard drive, writing a letter on paper, writing your digital photo to a storage medium, etc.). Since the ratification of the Berne Treaty, copyright assignment is automatic, even if you haven’t placed a copyright notice on the work. It’s quite easy for others to infringe upon your copyright. By default, copyright says “no”: no copying, no distribution, no preparation of a derivative work, no public performance. Your license is what grants others these things (and perhaps you are granting permission conditionally).

Are you willing to let “open source software” developers infringe in exchange for not opening yourself up to an IBM patent infringement lawsuit concerning any of the 500 patents in IBM’s non-aggression pledge?

What about the threat from IBM’s many other patents? IBM has tens of thousands of patents (I’d estimate over 90,000 patents)—they hold more patents than any other patent holder. In 2004 IBM gained over 3,200 patents. IBM says they have no plans to change their patent acquisition policy. 500 of IBM’s patents are listed in IBM’s non-aggression pledge. Are you ready to give up enforcing all of your “intellectual property” rights against “open source software” developers in exchange for access to less than 1% of IBM’s patents? Are you aware that you could lose a lawsuit over any of the other 89,500 or so patents?

What do patents have to do with me? I just run the programs.

You say you only run computer programs, you don’t develop them? That doesn’t matter. In the US, patents are 20-year government-granted monopolies. All patents cover ideas. Software patents cover ideas used in the production of computer software. It doesn’t matter that you only play MP3s, you probably owe Fraunhofer (or Thomson, Fraunhofer’s patent licensing partner) a fee. Perhaps you paid the fee when you bought the software that plays the MP3s, perhaps the fee was paid for you, perhaps nobody paid the fee. If Fraunhofer/Thomson says you haven’t paid, it’s your job to show otherwise. Not too long ago, Paul Heckel held patents which he claimed were implemented in Apple’s Hypercard. Apple didn’t negotiate a license for Heckel’s patents until Heckel threatened Apple’s users. Apple knew that Heckel could get money from the users (or at the least put them through a legal wringer) and Apple didn’t want to be known as the company that introduces its users to losing patent lawsuits, so Apple paid Heckel off.

Isn’t IBM’s pledge worth anything?

I don’t want to paint IBM’s promise as worthless, it is 500 more patents than you probably had access to before, but how valuable is it to the free software community? How much does it really change what free software users have to deal with? It’s not a patent license you negotiated for. It’s a revokable pledge to not sue under conditions where you give up your ability to enforce your rights—effectively the same as taking away those rights—for a certain audience for the duration of the patents’ lifetime.

Please don’t go into this blind; don’t forget to consider what you’re giving up.

Jef Raskin, one of the big movers and shakers behind the MacOS graphical user interface, was interviewed by The Guardian. He notes that Apple develops “by accretion”, not fixing the old stuff but acquiring new stuff to throw on top of the old stuff (in the hopes you won’t notice the underlying broken stuff).

This is a shame, but predictable.

At NeXT, Steve Jobs’ former company which Apple bought out and eventually used to build much of what is in MacOS X today, various “kits” or packages of functionality, were introduced, used by what few small third-party developers delivered anything for NeXTSTEP, and then those loyal developers were frustrated as quite a few kits were dropped.

PhoneKit (for ISDN support), MusicKit (for doing fancy music stuff with the NeXT cube’s DSP chip; this was picked up by a third party), IndexingKit (for fast searches of documents), and other kits were dropped soon after they were released. NeXT treated 3rd party developers like crap and few stuck around to keep getting kicked around.

This is one of the reasons NeXTSTEP and OPENSTEP (which, despite the name, was not “open source”) are highly overrated operating systems.

Worse yet, when the kits were dropped, they remained proprietary software. So developers couldn’t inspect the source code of the kit, copy the useful parts into their programs so as to increase the odds of justifying continued development.

I look at MacOS X today and I wonder if it has pretty much seen all the innovation it will see for the next 5 or 10 years. After a while, NeXT seemed to only care about certain aspects of NeXTSTEP and OPENSTEP (like WebObjects, another kit for making database-driven websites like web-based storefronts). The lower level parts (like the underlying BSD 4.3 OS) didn’t get upgraded or enhanced to fix annoyances like having to reboot to really clear out the swapfile.

By the way, WebObjects didn’t take off and never will. It was too clumsy to do what it tries to do and being proprietary it’s inherently untrustworthy. There’s tons of free software to do the same work and that is clearly where web merchants have gone for their web-based storefronts.

I’ve been told that Mozilla is an important web browser because it gives the user choice in browsing. I’ve been told that the open source movement is important because open source gives users choice. I argue that neither of those things are true. I also argue that choice is a mythical advantage.

Before Mozilla came along, Microsoft Internet Explorer, Netscape, and Opera existed and were in use. None of these browsers give the user software freedom but choice was satisfied. We see a similar problem with the two major American political parties: neither champion universal single-payer health care, equal rights for homosexuals, getting out of the war in Iraq, challenging the unconstitutional power the US President has to make war without Congressional approval, reducing corporate power over your life, funding political campaigns with public money, participating in real debates with other presidential candidates, and a number of other things. But choice is satisfied.

Mozilla is an important browser because it delivers the freedom to share and modify the program. Mozilla gives users software freedom. But the open source movement doesn’t champion that aspect of programs. I think this movement makes a big mistake in not championing software freedom but I can understand why they did it: this movement wants to speak to businesses and they believe that businesses are scared off by freedom talk. I don’t think of the open source movement as an enemy, I think of it as espousing a philosophy that focuses on the outcome of software freedom rather than its roots.

Focusing on choice is a big mistake. Choice can be used to marginalize opposition and railroad you into something you don’t really want. Choice is insufficient, we need the power to participate as equals and improve our community through mutual cooperation, and competition on the merits of our participation. We can get mere choice by focusing on more important ideals.