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Entrepreneurs And "Intellectual Property"

Saturday, November 11, 2006

Entrepreneurs and “intellectual property”

[Translation of Los empresarios y la “propiedad intellectual” by Ricardo Galli in Ricardo Galli, de software libre, published on 10-Nov-2006.]

In a few hours I will attend a round table discussion Entrepreneurs facing up to the new forms of intellectual property (in the University of the Balearic Islands, conference room, 18:15). As I only have a few minutes to make my introduction, I have decided to do something that I have never done before: to prepare and read a written speech. I am cutting and pasting it below.

Round table:  Entrepreneurs facing up to the new forms of intellectual property

The title of this round table discussion is an oxymoron, a contradiction in terms. I am referring to the phrase “intellectual property”, which as well as being contradictory causes confusion and is, in a sense, extremist in its nature.

“Ah... here is the old hippy radical communist," some will think.

Yes, I know that Lenin and Trotsky existed, I have read about them in history books and especially in Wikipedia and the Internet. But in this case, if you will forgive my boldness, I am going to use arguments that sound more like capitalist or free market thinking.

In saying that the definition of “intellectual property” is contradictory, I am not saying anything new. Thomas Jefferson, one of the founding fathers of the US, whom no one would take to be a communist, said it first. By quoting him I hope to avoid the condescending smiles that any advocate of free software would expect to see if they tried to argue for these ideas.

Jefferson said to McPherson in a letter in 1813:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.


I said that the idea causes confusion. The term “intellectual property” not only transmits the false perception that ideas by their nature have “owners”, but it also leads to concepts and laws that conflict with each other.

So, few people distinguish the difference between copyright, or the rights of the author, and patents, which are industrial secrets and registered trade marks. All of these are put in the same bag to simplify the debate and to make it possible to abuse the words, “to steal”, “thief”, and “pirate”.

If only Mr Jefferson could hear us now! Especially knowing the history of his country. The US was a “pirate” nation, for more than 100 years, until well into the 20th century. Walt Disney is one of the star products of this “piracy”. Hollywood is another: a meeting of North American "pirate film makers", agreed to set up shop on the distant west coast to avoid paying for Edison’s patents,.

A historian could assert, without fear of being contradicted, “How much culture and business has been generated by the copying of ideas!”

Copyright and patents are distinct laws and concepts. Copyright means laws that assure the author a monopoly over the manifestation of his ideas. Patents represent a monopoly on ideas applied to the manufacture of a product.

Software is automatically protected by copyright. Another myth is that the movement for free software is fighting for the abolition of these laws. This is not true.

The objective of the free software movement is not to eliminate all forms of copyright. Richard Stallman found a way to use these laws for an objective that is opposite to that for which they were originally created. Instead of assuring an author’s monopoly, the GPL licence uses copyright laws to assure that the programme is always free: this is the concept of copyleft.

Within the free software community, there are a variety of opinions and we do not have one set of definitions or proposals for the copyright laws. Our objective is something else: that every user of a computer programme can enjoy four liberties that we consider fundamental: freedom to use the programme, freedom to improve it or correct errors, freedom to give a copy to a friend and freedom to distribute the improved copies.

These ideas are not new and they are almost the same as those that the modern scientific world abides by. They have been operating from the time of Newton and have enabled an enormous growth in the technological marketplace.

If the laws of copyright allow the development of programmes and assuring these user freedoms, we do not have any problem with those laws; we have already found a way to take advantage of them for our ends.

The problem, which is now emerging and which we are complaining about, is the creation of new copyright laws that are becoming more and more draconian. That which originated as a regulation for industry has turned into laws that interfere with private activities and turns almost 100% of the people who use a computer into putative criminals. This has never happened before in history. And to justify this, appeal is made to the “free market”; what an enormous contradiction!

These increasingly restrictive laws can make it impossible for a normal person to live their digital life using only free software and at the same time avoiding breaking the law. I am referring to tangible and current cases: for example, we are not able to view our DVDs or listen to our music unless it is with a proprietary software player of a specific brand.

For this reason, I said that “intellectual property” is also “extremist”.

If Thomas Jefferson or Adam Smith emerged from their graves and could see what is happening now, they would think that the world has turned up-side-down; that the modern capitalists are those bearded hippies in jeans and that the communists are those suited gentlemen lobbying the politicians...

Did I mention that Bill Gates was in Brussels meeting with Charlie McCreevy, the European commissioner for the Internal Market and Services?

But I should return my focus to free software and business.

Another of the widely believed myths is that free software must be free-of-charge. This is not the case. Developing free software costs money, but nothing prevents people earning money for developing it, or for selling it at the highest possible price.

It is not for me to teach business people how they should do business; they know the problems better than anyone. Each one takes the decisions that they believe to be for the best.

I believe that the fundamental problem of the last few years has been that computer professionals have assumed that the only way of making money from software is by “selling licences”. So, the typical kinds of questions that one can hear are:

If I sell my programme [Translator's note: as opposed to a licence to use it], and anyone can use it. What will I live on?

This is such a topical and false question that I am going to answer with a comparison:

If you become ill and go to a doctor, whether in the public health service or private, and you or the state pays for treatment, and you are cured and you spend the rest of your life enjoying good health and during this time the doctor gets nothing from you. What will doctors live on?

The same reasoning can be extended to any other profession, engineers, architects, lawyers, economists, teachers... and I ask myself, “What is so special about software developers”? Are we show business stars? Why do we now want society to make it possible for us to live like Enrique Iglesias or David Bisbal?

Just as it is easier to win the football pools than to become an Enrique Iglesias, so it is easier to win the Christmas lottery than to earn a fortune selling software licences. The statistics demonstrate this.

Some 95% to 98% of programmers work and draw a salary developing software for internal use within their organisation. The majority of this software may be considered free because it complies with the four freedoms. On the other hand, the vast majority of companies selling software don't do it selling CDs in jewel cases in El Corte Inglés; they do it selling services.

Services is the key word.

This is the direct influence of free software in companies developing it or making business with it. They should be service companies, and the amount they charge should depend on the price that the market is willing to pay.

Having free software also has an important collateral effect: It liberates this service market. Now it is no longer possible to maintain a monopoly that is inherent in the market of proprietary software. Customers can appeal to any other company or programmer to modify the programs that they bought from third parties. The success of such companies will be based on their competence, quality and prestige.

Is this not pure competition, capitalism and the “free market”?

But I don't want to finish without making one last point.

All the indicators of the “software industry” for the Balearic Islands and to a lesser degree Spain, put us at the tail of the developing areas of the world, including countries like India and some regions of Brazil and China.

What has brought us to this situation? Free software? Or a proprietary software market of huge monopolies? As a society, should we defend the status quo or take advantage of the alternatives and opportunities that would enable us to change this situation?

I believe we have an enormous and very tangible opportunity. The free software market has been growing continuously over the last 10 years. The barriers to entry are very low and thanks to free software, we are only a few man-months away from being able to implement any kind of solution without having to negotiate or ask permission from any body.

Software is available to all, equally, under the same conditions. We need only to depend on our own decisions, the risks that we are prepared to face and above all our knowledge.

This is why we, and especially teachers and researchers, often say that knowledge make you free.


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