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Devil's Advocate: That’s MY code
Source code isn't just about SCO, Unix and Linux...

By Martin Brampton

Published: Monday 30 June 2003

For decades artists have argued over ownership of songs and other media. For centuries ownership of any idea or creation has been contentious. The latest wrangling is nothing new, writes Martin Brampton...

We hear a lot of the argument that rights are being eroded through the misuse of software. The same issue arises with films and music that are now universally digitised and so vulnerable to perfect copies. Now SCO is claiming to own bits of Linux, previously thought to be freely and publicly available.

Much less is heard of the arguments to the contrary. The oft reiterated claim that the supply of works will dry up if copying is allowed is significantly undermined by the fact that much great art was created prior to the existence of any kind of copyright legislation.

In the time of J S Bach, it was normal for musicians to take a great deal of interest in the achievements of their predecessors and even to incorporate elements of their music into 'new' compositions.

Shakespeare, Mozart and the King James Bible are all works that came into being without benefit of copyright. It has been argued that Elgar’s Enigma Variations use a theme from Mozart’s Prague symphony.

The philosopher Immanuel Kant took a profound interest in such questions, both theoretically and practically. For much of his career, he existed through payments for attendance at his lectures and from the fees he received from his publisher. As was common at that time, his publisher was also a bookseller, and contributed significantly to Kant’s intellectual resources by obtaining books and lending them to him.

Kant believed that a work had both a physical incarnation and an abstract element that came from the creativity of the author. This, he thought, should give the creator at least some rights over what happened to the work. So far, the argument is uncontentious and proponents of intellectual property rights often couch their claims in these terms.

Yet what happens in modern practice is dramatically different from Kant’s situation. The big music companies bemoan what they call piracy. Yet they neglect to point out that creative talent has frequently not been rewarded. Many enormously popular songs have been the subject of tiny, one-off payments to their writers or original performers. Thus creators have frequently been poorly rewarded, fundamentally undermining the argument put by the companies.

More radically still, one can question whether it is necessary for huge rewards to accrue to those lucky enough to be involved in the creation of popular works. The reasons for a particular work becoming popular are obscure and not obviously linked to any agreed definition of merit. Is vastly rewarding a handful of performers while giving others nothing the best way to stimulate creativity?

Another question is whether everything must be viewed in an economic light at all. Such a view is inherently immensely conservative and fails to address the essentially forward looking character of human life. Should parents be keeping a tally of everything they do for their children, so as to be able to render a bill? Not just student loans, then, but childhood care loans?

Software raises further philosophical questions. If anything should involve ownership rights, is it the program code or is it the algorithm that is implemented by the code? This proves an extremely difficult issue, as one can dispute whether algorithms even exist without some kind of coded expression. But there is certainly a practical question about the extent to which rights should survive translation into other forms of code.

Historically, many fundamental algorithms were placed in the public domain and freely published. Critical operations, such as the dynamic allocation of computer memory, should be done using algorithms that have been proven to be well behaved and efficient. Yet this involves standing on the shoulders of our predecessors.

Further arguments might surround the question of whether rich corporations that go to great lengths to press people into using their software ought in the process to sacrifice some of their rights to compensation. Is the current tendency in so-called intellectual property rights merely enriching the already privileged at the expense of the well-being of society in general?

** Martin Brampton is a director and founder of Black Sheep Research (www.black-sheep-research.co.uk ), an independent consultancy providing research, writing and speaking services on a wide range of business and technology subjects. Martin was previously a director at Bloor Research, and has worked with IT as a user and analyst for over 20 years. He can be contacted at silicon@black-sheep-research.co.uk.

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