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L. Neil Smith's THE LIBERTARIAN ENTERPRISE Number 262, March 7, 2004 Remember: Free Hunter!
Law Versus Reality
Exclusive to TLE Whenever the law doesn't match reality, reality wins. There are no exceptions. This is becoming more obvious every day with respect to what is generally termed "intellectual property" or "IP." IP is a term bandied about a lot with respect to high-tech items like computers and computer operating systems. The real problem is this: There is no such thing as intellectual property, and it's a denial of reality to behave as though knowledge is property. I recognize that this position places me at odds with many in the freedom movement who make their living creating works of art, something generally considered an "intellectual property," but reality is reality. Knowledge is not property. Thomas Jefferson knew this two centuries ago, when he noted, in a letter to Isaac McPherson:
I would heartily recommend that one read the entire passage from which this is quoted, because it's utterly brilliant. Jefferson makes the case against IP far better than I could. To sum up in modern terms, "Intellectual Property" is a legal fiction. It does not exist. Information exists, and it is of three kinds: known, unknown, and secret. Unknown information can be discovered, and once discovered held secret. The moment you tell someone else about it, the cat is literally out of the bag, and you have no real control over it any more. You can ask—even contractually require—someone to keep it secret, and seek restitution should they violate their contract. You can't stop someone else from discovering the same information. In my "day job," I am a computer geek. I presently hold the position of Linux Engineer with a major computer manufacturer, the first time I've held a position that is exclusively devoted to Linux. I've wanted such a position since 1994, when I first ran Linux in production for AT&T. Linux, for those who are unaware, is a computer operating system, often abbreviated "OS." If you don't understand what an operating system is, let me explain in simple terms: Imagine your computer was a car. The operating system is its engine. Without an engine under the hood, a car can look beautiful, but all it will ever do is sit in your driveway. A computer operating system is the same: without one, your computer is nothing more than an expensive paperweight. The most common consumer operating system is Windows, an "engine" manufactured by the Microsoft Corporation. Anyone familiar with it will tell you that it's not a technically brilliant system—you can think of it as being an 4-cylinder engine that's been heavily tricked-out and modified to move an SUV, but it leaks oil, transmission fluid, and water from its radiator. Fortunately, in the computer world, oil, transmission fluid are all cheap and easy to replace, and the engine comes with virtually every car ever made. But the engine itself isn't a great engineering feat, and whenever a trucking company wants to make sure a product actually gets somewhere on time, they use something better. In the computer world, there are two better engines. One is IBM's mainframes. In the automobile analogy, you can think of these as jet engines. When UPS wants to make sure your package gets from New York to Los Angeles overnight, they don't fill their cargo planes with 4-cylinder engines (Windows). They use big jet engines (IBM Mainframes). The other engine is UNIX. When UPS takes your package from the airport to their sorting center, they don't put a 4-cylinder (Windows) engine in the semi truck, they use a big diesel engine (UNIX). Now, computer hardware (your car without the engine) being as cheap as it is, you can drop almost any kind of engine (operating system) into it. You can imagine that every computer on the market today has the potential to be a semi truck. This is true for everything from the little sportscar (the notebook computer) to the SUV (the desktop computer) to the truck (the file server). The only difference between them in any practical way is the engine (operating system). Not only that, but in the computer world, the price of parts for the engine (operating system) is so cheap that it's now possible for people to build their own. Imagine it like this: Three hundred years ago (in computer time), a company called AT&T manufactured the first truck engine. They called it UNIX. They wanted to sell it, but AT&T held an immoral government charter which forced every American to use them whenever they wanted to haul certain kinds of freight (make a phone call). The government (always underestimating the power of the computer) decided that as long as they were forcing people to pay AT&T for freight, they wouldn't let AT&T make money selling trucks engines, too—that seemed like too much of an immoral monopoly in government "ethics." AT&T found that making their own truck engine was a lot cheaper than buying it from someone else at that time, and once it was built, making more was really cheap. So they started giving the engine (UNIX) away to government agencies, government schools, and even some private schools. People could look at it in detail, see how it worked, take it apart, put it back together again, add things on, take them off, and so on. People did this for a long time, so long, in fact, that whole generations grew up being trained in how to take apart and put back together this engine. It's been so long that in computer years, we call this UNIX that AT&T gave away "Ancient UNIX." The inner working of Ancient UNIX are as well-known in computer circles as the general workings of the internal combustion engine are to mechanics. So many people know it that some of the processes are simply industry standard, now. Making a modern engine without some of Ancient UNIX's components would be like trying to build a car engine without using water in the radiator. Eventually, via many varied (and occasionally twisted—for details, see [this link]) means, other companies copied the original UNIX engine or bought pieces of it outright, and started selling it. In fact, AT&T even stopped using its original UNIX, selling it to a company who sold it again to a company that bought another company whose management eventually took over that company. It's been three hundred years, after all, in computer time. Many companies who made UNIX came and went, and today there's really only three left of any consequence:
There's one more company of note, not because they sell any real volume of their product, but because they ultimately ended up owning the original UNIX made by AT&T: The SCO Group. SCO isn't a profitable company and hasn't been for some time. It's been through a couple of mergers and acquisitions, but has rarely turned a profit. It certainly has never competed meaningfully with IBM, Sun, or Compaq. During the last century (computer time—it's actually only been about ten years) the price of building an engine has gotten to be virtually nothing. Gear-heads sometimes do it in their garage, just for the fun of it, to see if they can think of some new way to trick it out and make it better. One such computer gear-head was Linus Torvalds, a college student in Finland. Torvalds liked UNIX. He liked some of the other home-made, tricked-out versions. He had a brand new car—a very popular model, and a direct ancestor to the most popular car today—that the engine wasn't capable of really exploiting. He thought it would be fun to build his own engine, tailored to work really well with his new car. What Torvalds had that most car gear-heads don't was the Internet. He told his gear-head friends on the Internet about his new, home-brew, tricked-out engine. Since a lot of those friends owned the same car, they saw that what he was doing could really make their cars smoke, too. Torvalds thought that it made a lot more sense to share what he was doing with everyone, let them make additions and changes, and eventually evolve the engine into something even better than he could make it alone. There was another gear-head named Richard Stallman. Stallman had been talking about the notion that it makes sense for gear-heads work together to make more efficient engines. Under the auspices of his organization (the Free Software Foundation—http://www.fsf.org), he sponsored GNU software, a method by which lots of the pieces of the UNIX engine get tooled by gear-heads. So with Stallman and his gear-head friends working on the pieces of the engine and Torvalds and his gear-heads working on tooling up the pieces in a new way, the truck engine Linux (or GNU/Linux as Stallman prefers) was born. Linux looks and act a lot like UNIX, borrows lots of its methods, and maybe even some of its parts—parts that have been available for three hundred years, computer time. Now the thing about Linux is that no one actually owns it. There are maintainers, gear-heads who tweak the various individual pieces or make sure that the pieces fit together the way they're supposed to. Because of the Internet, the gear-heads don't live close to each other and they don't work for the same companies when they're not being gear-heads. Because of Stallman, the pieces they make are available to anyone to look at, re-tool, and make work. This has resulted in a really slick engine that is currently going into 20% of the trucks being sold in the world. In fact, the likelihood is that the "truck" that lets you read this essay has Linux under the hood. Anyone who has the financial wherewithal can make CDs with Linux on it, add their own particular branding to it, and sell it. Today, the two leading Linux companies are American-base Red Had Software German-based SuSE. Even UNIX vendors such as IBM and Compaq have made motions toward ultimately abandoning their own UNIX in favor of Linux. Meanwhile, back at SCO ... remember SCO, the company that now owns the UNIX AT&T sold off, way back when? The unprofitable company that doesn't compete well with other companies that sell UNIX? Meanwhile, back at SCO, CEO Darl McBride notices that between IBM and their engine, AIX, and Red Hat and SuSE with their engine, Linux, the old, original UNIX isn't selling so well. In fact, it's selling badly. In fact, unless something is done, the company is going to go belly-up probably sooner rather than later. So what does McBride do? Does he improve his UNIX engine so that it's clearly and obviously better than IBM's or Linux? Does he cut prices in order to entice customers to use his engine? Does he adopt Linux the way the others have and use more effective marketing and pricing to convince customers to use it? No, McBride does none of that, because that's not the kind of person McBride is. He has no interest in competing in the free market, because Darl McBride is a businessman of another stripe. He's a socialist. McBride decides that when you can't compete in the marketplace, you should try and use government to force the marketplace to come to you. McBride notices that American copyright and patent law—designed at a time when printed books and manufactured parts were the only thing anyone thought was "Intellectual Property"—bears no relationship to the modern world. Century-old law was being applied to modern computer "car engines," in a pointless attempt to protect IP rights that never existed in the first place. So McBride begins a long campaign to stamp out Linux. He starts claiming that the pieces and parts of Linux that look and act so much like UNIX are actually stolen from the UNIX that his company now owns. McBride doesn't mention the fact that the UNIX car engine has been around so long that its methods, pieces, and parts show up in every other car engine in existence—Windows included. He doesn't mention that back when AT&T owned it, the pieces and parts were routinely handed over for free, and anyone who had a truck could get under the hood to tweak with it. He doesn't mention that so many people worldwide have been trained on it and played with the pieces, and tweaked the parts that his entire argument appears ludicrous to anyone who has the slightest knowledge of cars. He doesn't mention that the people who original designed and built his engine are dead or retired, therefore no one with any legitimate interest is being harmed. McBride is essentially claiming that his company owns the intellectual property behind the diesel truck engine, therefore anyone who uses a diesel truck with an engine that resembles his should pay SCO. Late last week, McBride actually started a lawsuit against two major companies, AutoZone and DaimlerChrysler. McBride claims that since both companies use Linux, and since Linux uses pieces and parts of the engine that was once given away free of charge, AutoZone and DaimlerChrysler are violating SCO's intellectual property. The tragedy in all this is that because people believe that knowledge and ideas can actually be owned by a single individual, the law in this case actually works in SCO's favor. This is what happens when reality is ignored by the law. What will happen is simple: Reality will win. McBride may be successful with his socialist money-grabbing in the near term, but in the long term, the market will react and put his company out of business. In the long term, the Federal Government and State Governments that make his case possible will collapse of their own weight. There will be a sudden—and rather dramatic—correction. And we'll all be a lot more free, very quickly. With luck, we'll learn from our mistakes, and understand that the American Experiment to limit government was a dismal failure. Government cannot be limited. Having "a little government" is no different than being "a little pregnant." You can ignore it for a while, but eventually it starts to show. There's a lot of screaming and pain, and then you get rid of it. If you want to avoid the pain, you don't get knocked up in the first place. With luck, the next time we have an opportunity to get "knocked up" with government, we'll learn from all of prior human history and decide to abstain.
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