Re: [OS:N:] RE: Open Source as a form of Anarcho-Communism?

[Brendan Scott <bscott gtlaw com au>]

Paul

Paul Fitz wrote:
> Hi Brendan,
>
> Oh no!  I didn't want to get that far into the intellectual property debate
> :P  There's a 60'000 word thesis there for you to undertake brendan :)
>
> For this paper (we are talking about 3500 words!) I have to go with the
> basic premise that in our modern western society, the legal concept of
> intellectual property does exist, is associated to copyright and is a
> product of private property concepts established by Locke.  You can deny it
> all you want, but until I see you in court battling microsoft (hopefully
> soon, I'll send you some money for the case :)) for the right to access
> their source code, I'm using that it's (intellectual property) existence and
> association with private property rules are a valid premise for other
> arguments.
>
> Also, if you deny the validity of Intellectual Property, then patents for
> inventions are not valid either?  The design for new products should be open
> source and any individual should have the right to make physical items from
> those ideas/inventions.

You still don't get it.  No one denies that legislative monopolies exist.  That doesn't make them *property*. Not being 
property doesn't mean they're invalid or don't have legal force. In the US people have the legal right to free speech, 
but that right is not their "property". People have rights to fair trials etc that doesn't make that right their 
property. If you disobey an order of the court you can be put in jail.  That doesn't make the court orders into property 
etc etc etc.  You need to understand these concepts in order for you to have something meaningful to say in your essay.

> Btw, initially you said that copyright has only existed in recent times, can
> you give more detail on the Statute of Anne 1709?  Was that any where near

Yes, it's in the paper that I referenced in my previous email.

> the modern concept we have of intellectual property?  It doesn't matter so
> much that Locke was dead when it came about, Marx was dead when communism
> began!

True.  The point I was making is that Locke was talking about tangible objects in the context of a society that 
conceived only of property in tangible objects.

> Your input is very helpful and enlightening, if you can accept that I'm
> using the intellectual property premise (flawed as you think it may be), do
> you have any other ideas on the real nature of open source comunities?

What I am saying is that you are using the term "intellectual property" as if it has meaning.  I am saying that term is 
meaningless, at least to the extent it impliedly imports notions from the real property sphere. You talk about 
programmers "giving away" their "intellectual property".  If you make this assumption then you're effectively assuming 
the conclusion of your paper. To take the liquor licensing example you would argue that moonshiners are actually anarcho 
communist because they oppose "liquor property" laws which restrict their sale of alchohol.

At least some open source programmers have an expectation of being paid (eg Red Hat is not a charity), they just don't 
base that expectation on a government backed monopoly over the software they write. The sale of open source software is 
the sale of programming as a service, not of software (the output of that service) as a product. How do you explain IBM, 
Sun and Hewlett Packard's endorsement of open source?  Are you suggesting that they are anarcho communist? Lawyers don't 
have monopoly rights over the advices they give.  Does this make them anarcho communist?

What you're effectively saying is that a software (or indeed any other) industry model based on the sale of services is 
anarcho communist and a model based on the sale of a product is capitalist. I don't believe you can make that distinction.

Why don't you look at open source as a form of investment, where programmers invest incremental amounts of their 
programming time in the expectation of a greater return in the long run (of a finished program from their and other 
people's investments). Sometimes it pays off handsomely, sometimes the investors lose their investment.  I don't see 
this as all that different from any other investment scheme other than that the investment is non monetary.

Basically, you can't go around saying that open source is opposed to (or confirmatory of or anything else in relation 
to) intellectual property until you understand both what "open source" and "intellectual property" are, let alone 
whether "intellectual property" is derived from a Lockean theory of property.

My guess is that the point of your thesis is to make you think about these issues.


Brendan

PS: I would call the internet a means of distribution, not of production.