Cory Doctorow: IP (2020)
The &quot;paradise lost&quot; story of a &quot;free state of nature&quot; in software prior to 1980 only seems to come up in writings of free software people. The more I read other sources, the more that seems romantic, even nostalgic. And frankly academic, as in &quot;endemic to college students&quot;.<p>Back in the mainframe era, there wasn&#x27;t really a &quot;software industry&quot; as we know now. And there weren&#x27;t so many rules about software specifically, because published software wasn&#x27;t terribly relevant commercially. The question wasn&#x27;t whether the law would step in to enable software developers to market their work, rather than hoarding it. It was whether they&#x27;d get their own software-specific regime, like Japan had, or come under some existing one.<p>But even before software copyright, it wasn&#x27;t as though source code wasn&#x27;t anybody&#x27;s intellectual property. It was kept as trade secrets. There may not have been any specific public laws preventing you from doing as you liked with source code you had. But it was highly unlikely you would ever get source code you wanted in the first place.<p>GPL made peace with copyright, chose to depend upon it, to declare war on trade secrecy. To hear RMS tell The Parable of the Printer, the paper causing the problems was nondisclosure agreements---the tools of trade secrecy protection---not copyright statutes. And trade secrecy hasn&#x27;t gone away. Folks working at software companies these days will have signed legal terms requiring them to keep company code close.<p>So yeah, maybe kids had their cake with icing back in the day. But they were cupcakes, mostly homemade. Not the 2^n-layer, all-you-can-eat wedding cake bonanza we gorge on now. The appearance of a software <i>industry</i> made that difference.<p>Similar rose-colored story with &quot;intellectual property&quot;. Yes, that&#x27;s in recent fashion, from about the 1980s. But there were other names before it. The near-neighbors &quot;incorporeal property&quot;, &quot;industrial property&quot; (excepting copyright), and especially &quot;intangible property&quot; enjoyed popularity before the World Wars.<p>I suspect we&#x27;re on about &quot;intellectual property&quot; because RMS turned hating on it into activist catechism. One of his many, largely failed attempts at Sapir-Whorf manipulation. But he&#x27;s losing &quot;intellectual property&quot;, too.  It was and remains useful for lawyers, managers, accountants, and scholars to distinguish bundles of exclusive rights in physical assets from bundles of exclusive rights in ideas and information.  &quot;Bundles of exclusive rights&quot; is exactly how we define &quot;property&quot; on the first day in law school.<p>Arguing that IP protection has gotten stronger because clever Bernays types chose a slippery-slope metaphor, which lawyers at court and in Congress just couldn&#x27;t help sliding right down, conveniently avoids acknowledging the well organized interests behind stronger IP laws. Which, as a general rule, have knocked &quot;commons&quot; activists out cold in every bout since long before Lessig took up Eldred v. Ashcroft and lost.<p>&quot;Monopoly&quot;, alas, is just another very general way to describe &quot;property&quot;. And it&#x27;s a bad choice here, because it&#x27;s overloaded, as Cory points out. See also &quot;patents&quot;, which didn&#x27;t mean anything specifically to do with inventions to start, but all manner of government- or monarch-granted rights.  There were &quot;land patents&quot;. Before just anybody could form a corporation, they had to get a charter from the government, a form of &quot;letters patent&quot;.<p>Playing guilt-by-pun-association, hopping from one meaning of &quot;monopoly&quot; to another, leads to some head-scratchers. Especially the definition of IP as &quot;any law that I can invoke that allows me to control the conduct of my competitors, critics, and customers&quot;. In practice, with crafty enough business people, that&#x27;s nearly all of privately enforceable law. Defamation? Regulatory licenses? Business torts? Contract?<p>It&#x27;s important to keep in mind even IP laws aren&#x27;t weapons just laying around. They only apply to certain voluntary conduct. The nondisparagement clause in Goldman Sachs&#x27; font license doesn&#x27;t entitle it to go back and sue Matt Taibbi for calling them a &quot;vampire squid&quot; in Rolling Stone. No more than RMS can sue Facebook for making non-free software under the copyleft clause of his GPL grant for Emacs. The issue is when &quot;voluntary conduct&quot; doesn&#x27;t feel so voluntary any more, as when a particular firm totally dominates a market for essential goods or services. Railroads and telegraphs played that hand hard, and not primarily thanks to IP. Those dangers remain real, and Cory&#x27;s been on about them, very honorably, for a few years now. It&#x27;s the connection he tries to make between IP and antitrust that&#x27;s weak.<p>As for where he ends up, in the end, &quot;rights&quot; and &quot;freedom&quot; are just vacuous generalities, like &quot;community&quot;, &quot;liberty&quot;, &quot;innovation&quot;, and so on. We pour our hopes and dreams into them and feel happy feelings when others invoke them. Others like to hear us use the words, too.  But we can&#x27;t know which hopes or dreams they&#x27;re swooning over when we do. They could be the same as ours. They could be in direct conflict. During the civil rights movement, &quot;freedom&quot; to some meant the right to live, work, eat, study, and worship free of racial discrimination.  To others, it meant the right to enforce segregation in states that wanted it.<p>It&#x27;s tempting to paper over conflicts with vague words, to make win-lose scenarios sound like win-wins. If you feel strongly about traditional hacker causes---privacy, autonomy, hackability, transparency---you will be in direct conflict with large, well organized, heavily capitalized chunks of industry. If you want that fight, play to win.