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Free or Corporate Enterprise?

By Gerry Patterson

Is it possible to consider the issues surrounding Open Source Software to be another example of bolshies vs capitalists? In other words, is it a continuation of the ideological struggle between public and private ownership of capital?

This essay considers how relevant this comparison is to the conflict between open and proprietary standards.

The argument presented here is that since the demise of socialism, the real conflict is between Free Enterprise and Corporate Enterprise.


The Development of Free Enterprise

Meet the new boss
Same as the old boss!
--The Who (We Won't Get Fooled Again)

Although on the face of it, the conflict between Open Standards and Proprietary Standards would seem to be a twenty-first century equivalent of last century's struggle between socialism and capitalism, this comparison is quite inappropriate. Despite the apparent similarity of a conflict between public and private interests, there is an important distinction.

The current conflict is about intellectual assets not about capital!

Also, in many ways the debate of socialism vs capitalism is largely irrelevant.

The Renaissance: Where it all began.

Western (free-enterprise) capitalism can trace its' roots back to "The Renaissance". It was then that the combination of science, technology and entrepreneurial enterprise combined to give rise to an attitude, that could be described as "modern". It was bold, based on evidence and above all "critical". It was this modern attitude that challenged and then eroded the authority of the church. When combined with the effects of the printing press, it became a powerful force that transformed the globe.

The keystone of this transformation was the "free and open" exchange of ideas. This exchange became the engine of not only science, but technology, the arts and humanities as well. The explosion of "Free Enterprise" capitalism that resulted from the Renaissance was dependent on the innovation that this exchange of ideas allowed to happen.

The Industrial Revolution: Stoking the boilers.

In the nineteenth century, there was another mini Renaissance. The so-called New World experienced a period of explosive growth that was as rapid and transformative as the European Renaissance had been two centuries earlier. The culture that developed and came to dominate the American continent was a direct descendant of the European Western tradition, but had a unique American personality. And across the Atlantic, England also, was undergoing rapid industrialisation. American capitalism would eventually prove even more vigorous and voracious than its' European ancestor.

Towards the end of the nineteenth century, there was an important change to the laws concerning corporations in the USA. As a result of the infamous Santa Clara case of 1886, corporations were deemed to be entitled to "equal protection under the law" (equal to individual citizens that is). This extraordinary decision set an important precedent for the power and influence of American corporations during the following centuries (see the bibliography for more detail).

Socialism: (The abridged version).

Another important development in the latter part the nineteenth century was socialism. The ideological dispute between socialism and capitalism would occupy most of the twentieth century. The adherents to these competing philosophies were passionate and quite blind to the obvious fact that both paradigms were seriously flawed! Both socialism and capitalism attempt to model human society. Both these philosophies couch their rhetoric in the language of pseudo-science in order to lend themselves validity.

The desire to model human society arose from a type of paradigm envy which seems to have arisen since economists or other practitioners of pseudo-science regarded the remarkable successes of real sciences like physics and astronomy. Practitioners of real (or "hard") sciences could propose simple models and make accurate predictions based on these models. This being the basis of the scientific paradigm. The Copernican (heliocentric) model and Relativity are generally cited as classic examples of paradigms.

In an effort to duplicate the successes of the "hard" sciences, practitioners of pseudo-sciences also make predictions, or try to. Unlike real scientists however, they do not modify their model when the predicted outcome fails to eventuate. Instead they modify the data.

In the case of communism, an unfulfilled prediction was that regarding itself. According to the Marxist-Leninist doctrine, the triumph of communism was inevitable, and would follow the establishment of the first socialist state as surely as night follows day. The ultimate failure of communism to fulfill one of its' (central) tenets was but one of many, but it must be one of the more ironic. Although the prediction that Capitalism would collapse under the weight of its own contradictions, failed to eventuate, the towers that used to comprise the World Trade Centre did fall victim to something different and less intellectually puzzling - amazing defiance as to what they stood for!

Likewise, capitalist economic theorists have made not a single useful prediction, though there have been convincing failures, such as the Great Depression, in the thirties. Such paradigm failures would have proved fatal for a belief system that was evidence-based. A Modern-day adherent to capitalist doctrine, who would typically be described with the oxymoron economic rationalist, is able to shrug off such disasters. Generally when economic predictions fail, an economic rationalist will blame human society for the failure. Often the theorist laments that the market is not ideal and gives the usual excuse that it is "subject to distortions". Policy makers obligingly endeavour to force the market to be ideal.

Although the great twentieth century struggle between the competing philosophies of socialism and capitalism inflamed passions in the breasts of many, they were but differing faces of the same false assumption: that human society can be modelled with economic and social theories.

The reality is: human behaviour, and by implication, human society, is too complex to be modelled. Markets - including the markets for money itself - keep changing, transmuting. Markets are kaleidoscopic. Which is why business operations often fail - they cannot or will not adjust.

An accurate mathematical model of society and markets would be insoluble. Hence the behaviour of human (and economic) systems is unpredictable, and the science of chaos mathematics is better suited to modelling such systems than the dogma of either capitalism or communism, both of which assert that human behaviour is only ever "economically rational" and that it always conforms to their particular ideology.

Nevertheless the debate raged and to a certain extent continues to this day. However, while capitalist and communist ideologues argued about how many angels could dance on the head of a pin, an important fact was over-looked:

Free Enterprise and Corporate Enterprise are inimical!
During the cold war it might have been convenient for the forces of Free Enterprise and Corporate Enterprise to unite against the common foe (communism). But since the communist boogey man has evaporated it has become apparent that it will be difficult to align the goals of Free Enterprise and Corporate Enterprise. In many areas they are diametrically opposed.

It should be noted that for the purposes of this essay "Free Enterprise" is defined as a system of Trade and/or commerce between persons and/or businesses that is fair and open. That is to say a system that contains minimal barriers to entry and/or constraints and allows all participants a more or less equal opportunity to bid. In order to attain such an ideal state of affairs there would need to be a large number of participants of more or less equivalent size. Transactions would be conducted through a "market". It is, ipso facto, a utopian ideal, and unlikely to be attained in the modern economy. Nevertheless it is almost universally espoused.

"Corporate Enterprise", on the other hand refers to a system of trade or commerce that takes place between a large number of consumers or customers on one side and a small number of vast organisations on the other. The organisations can (and often do) span more than one continent. Transactions are usually conducted through a "distribution channel".

In its' pure form "Free Enterprise" would be conducted by small and medium sized enterprises (SMEs). However in reality, SMEs are often dependent on the corporate sector for work. One of the interesting developments in semantics however, is the use of the term "Free Market". Many people who endorse it are in fact opposed to genuine free markets. This because it is often used as a euphamism for an untrammelled corporate market (which is anything but "Free").


Corporate Enterprise.

Drinkin' rum and Coca-Cola
Goin' down Point Tumana
Both mother and daughter
Working for the Yankee Dollar
--Unknown

The emergence of corporations with inalienable rights has been one of the most extraordinary and unfortunate examples of legal silliness to come out of any court in the last two hundred years, and could only arise in America. Citizenship is a concept that should be shared by equals. To consider us puny mortals with our limited resources and limited life spans, to be on an equal footing with vast trans-national entities that can go on accumulating wealth and power over many human lifetimes, in many different nations, is a nonsense.

Although the American legal system has been known to deliver absurd judgements, America is the world's leading economy, and despite the fact that democracy in that country appears imperilled, as the questionable nature of the most recent presidential election illustrates, America is still regarded as one of the world's leading democracies. As a result, the Santa Clara precedent has had implications beyond the shores of the American continent, as giant corporations insist that they are indeed "just plain folks", endowed with a citizen's rights and privileges, and then proceed to assert them, and to participate in legal and political processes as if the little possums were just like any other citizen!

Americans generally, aspire to "Free Enterprise", even though it might be unattainable, but live with the reality of "Corporate Enterprise". To a varying degree these aspirations are shared throughout the Western capitalist world (esp in the English speaking regions).

For this reason, most Americans would admit that Corporations have a disproportionate amount of influence in the political and legislative affairs of the nation. The amount of money that Corporate Enterprise spends on lobbying marketing and "spin" (read "bullshit") is mind-boggling. This has lead to a confluence of business and government interests which bears no resemblance to a "Free Economy", but ironically resembles the classic Marxist planned economy! It would be enough to make old-style conservatives (and communists) turn in their graves!

In the mainstream media, there is little discussion of the fact that there is now a limited number of corporations each with a monopoly or near-monopoly on world trade in their particular product lines.

Back to the Renaissance: The new rulers.

We live in days when CEOs, who in any case are no more than glorified managers who often manage badly, wish to be regarded as celebrities, if not princes. Which is almost a return to the days of the Borgias, in post-feudal days when a few upstart ex-Spaniards exploited local rivalries in an attempt to carve up Italy to their liking. Today, it's as if we are unwinding everything back to where it began ... The Renaissance!

Furthermore with the unwinding of democracy in America we seem to be entering a new age of "rule by fiat". In the days of the British Empire, those clamouring against the operations of royally-granted monopolies could at least appeal to parliament. Today, we (the rest of the world) have from the US a set of US-Republican-granted monopolies - their corporations - and no one to complain to!

Despite the almost total dominance of our lives by Corporate Enterprise, there are number of imminent "speed humps" that do not seem to have been clearly marked on the corporate road-map.

The 21st Century: The Seizure of Intellectual Assets.

Corporations have undergone a dramatic evolution in the last two hundred years, but one of the more insidious has been the locking up of intellectual assets. This has been a gradual process that has overturned the intent of the original laws of copyright and patents.

This all comes down to whether or not it is possible (or desirable) to "own" an idea. Most opinions on this matter are written in legalese and as a result, are almost incomprehensible. However, it is possible for non-lawyers to glean some meaning from these documents, if they can keep their eyes open long enough (which is quite difficult since most legal documents seem carefully constructed to render a lay-person catatonic).

Generally, it seems that (until recently) it was considered that ideas, in their purest form, could not be restricted, possessed, or constrained by law. However the expression of ideas could and was subject to legal constraints. The intent of copyright law was not to lock up an idea, but to give limited ownership to an author who expressed the idea in some composition. The idea in general was free but the expression in particular was deemed to be the property of the author for a limited duration in order that the author might be suitably rewarded for his (or her) endeavours.

Note: It should be emphasised that the original intent was that the ownership should be limited. And when it expired it would revert to public ownership.

Similarly patent law made the important distinction between the idea and the specific application of the idea. For example: It would not be possible to patent "The Wheel", but an innovator who came up with a specific configuration of wheels, cogs, levers etc could patent only the specific application, which would need to be described in detail.

The reason for placing limits on the scope of copyright and patent laws, and on the rights of owners, was to allow the free exchange of ideas. Without this exchange, genuine innovation and competition and by implication scientific and economic progress would cease.


Getting tough on pirates.

Every generation imagines itself to be more intelligent than the one that went before it, and wiser than the one that comes after it.
-- George Orwell

In recent years copyright and patent laws have been broadened and strengthened and have become heavily biased in favour of copyright and patent owners to such an extent that they threaten scientific and intellectual freedom.

The most remarkable example of these changes is the infamous DMCA, which has the potential to stifle innovation and gives extraordinary powers to copyright owners to refuse access to material and to pursue persons suspected of violating copyright, and in some cases may even reverse the onus of proof.

In Australia it seems that legislators and recording industry lawyers would like to take us down the path already taken by American legislators. In a recent case (see bibliography) students were threatened with fines and lengthy custodial sentences. And the heinous crime that these young people committed? They created MP3 copies of songs, and (may have) exchanged them with others. Furthermore the Universities in question must satisfy the Musical industry representatives that no other offence is being committed. This would seem to reverse the presumption of innocence, which till now, has been one of the central tenets of our legal system.

If the Music Industry had had such power to intervene in the lives of students when I was at University, many of us may also have run afoul of the law. At the time, the practice of making copies of music was widespread. The cassette player had just emerged, and improvements in technology had enabled small portable cassette players to reproduce music of a reasonable quality. As I recall, most students made copies of records and listened to them on home, portable and/or mobile cassette players, and (on occasions) they exchanged the cassettes with other students.

Also at the time, I recall that the Music Industry made a similar fuss about infringement of copyright. However the legal and political systems were not as well-disposed towards the industry.

Back then, legislators did not take the side of the Music industry. They left it up to the courts, who ruled in favour of consumers. It was deemed that the creation of cassette tape copies mostly constituted "fair use". The burden of proof was (rightly) on the music company to prove that the purpose of copying was illicit. (And to prove it beyond reasonable doubt).

It seems remarkable (although considering recent developments -- perhaps not so remarkable) that legislators seem to be taking the side of the large entertainment and media conglomerates. Laws like the DMCA contain penalties that would match those handed out to criminals who commit major felonies. It is extraordinary that young people should be threatened with such harsh punishment for trivial misdemeanours. It is perhaps alarming that such an insignificant transgression should, in terms of the penalties that might be imposed, match those for offences such as assault, rape, burglary, robbery with violence etc. And just as alarming is the fact that, as in a recent case, a University should hand over back-up tapes to industry representatives in order to ascertain whether or not anyone committed an offence!

To return to our previous analogy. Would it have been allowable for a university (back in the seventies) to monitor phone conversations and intercept mail, just on the off-chance that students (or staff) might be planning to make illegal cassette copies of vinyl records? And if it had been allowable, would they have done so? I think not.

Why is it happening today?

The answer is because they can. An unfortunate consequence of electronic communications is that it can be easier to engage in large scale interception and/or monitoring of communications, that in the past would have been considered confidential. Of course, there needs to be a balance between the need to know and the need for confidentiality (which has been given the unfortunate misnomer of "privacy"). The current legal situation seems weighted heavily in favour of large multi-national corporations rather than individual citizens.

Apparently the argument that has persuaded legislators about the need for legislation like the DMCA is that presented by the industry:

New technology presents such powerful tools to create multiple high-quality copies of entertainment content at a low price, that powerful laws are required to combat the practice.

And yet the same argument was proposed in the seventies, citing the audio cassette as the powerful new technology that threatened Corporate Enterprise. And the argument was comprehensively rejected. Even later, when the video cassette made its' appearance, the entertainment industry advanced the same argument. And once again it was rejected.

The same tired old argument has re-surfaced and this time appears to have been accepted. Has the argument gained validity? Is it suddenly more persuasive? Or has the political process been seriously compromised by the mind-numbing wealth and power of the corporations involved?

It seems that the when the "corporate citizens" of the twenty-first century speak, their voices are much louder than we human citizens, and the message seems to be heard much more clearly on the grassy hilltops where our houses of legislature are perched.

While there has been much publicity about the proposed Free Trade Agreement (FTA) between Australia and the USA. Most of this has focused on the agricultural sector and local content in the mass-media. American copyright law, and the trends therein, have been conveniently over-looked. This is a serious omission!

The political process appears to have been hijacked. Detractors who would prefer to express their dissent at the ballot box are not given the opportunity to do so. At present, voters have no choice in the matter. Major political parties seem to be unanimous on the issue of copyright laws and intellectual property. And there is little serious discussion of the issue in the mainstream media.

Fortunately the courts are not as compromised. In many cases they still rule in favour of consumers. One particular case in Sydney involved three students who ran a protest website that offered a similar service to the now defunct Napster. Reports in the mainstream press (and in a few online journals) slavishly and uncritically reproduced the industry spin. The students had "stolen" $60M worth of music (so the newspapers and television told us)

However the site was clearly not being run to make a profit. It was obviously a form of protest. And this was the view that the magistrate took, when he handed out suspended sentences (see the bibliography). There were howls of indignation from the recording industry, calling for maximum penalties (which are unbelievably harsh).

Although the issues may seem to be similar to those in previous examples of technology change, this time the recording industry may be at the cutting edge of a clash of paradigms, and its' very existence could be at stake.

Certainly passions run deep on both sides of this conflict. Industry advocates accuse pirates, who are mostly young, and often students, of "stealing". The young people accuse the Industry of profiteering. The Industry's case seems very weak. As the previous case illustrates, if the absurd sum of sixty million dollars was correct, then the surely industry is damned by their own estimates! If the music that the kids "stole" really was worth such an incomprehensible amount, then one should ask; from whose pockets has this money been extracted?

New technology means that sound can be recorded and reproduced at a mere fraction of the cost that it used to entail. When it is considered that the most miserly fraction of the total price goes to the artist who created the content, and this has not changed to a great extent, then the price of CDs should have decreased dramatically. And if it were distributed in MP3 format it should drop even more dramatically!

A crisis has arisen in the music industry mostly due to the establishment of MP3. This has been a slow train coming for two decades or more. Music has been been available in a digital format since the CD achieved market dominance. The arrival of a superior (open standard) digital format was ignored by the music industry. Negotiations with the popular centralised server, Napster failed, partly due to Industry greed and intransigence. In so doing they missed a golden opportunity to reach an understanding similar to that reached last century with broadcasters.

The Industry continues to not endorse the new standard, and is attempting to develop their own cumbersome and restrictive proprietary standards, which they intend to foist on consumers.

A new generation of young "Robin Hoods" are "stealing" from the rich (the record labels and some over-paid performers) in order to give to the "poor" (other students and less fortunate musicians). The RIAA seems well suited to the role of "Sheriff of Nottingham". But what of morality? What of ethics? Is Ethics perhaps Maid Marian. In which case the musicians and sound engineers seem to be the birds in the trees. And if the value of the product has been reduced, might she not seem somewhat plainer?

The problems which seem to beset the music industry could easily be solved by a paradigm shift. If the old Corporate paradigm were to be abandoned, musicians could embrace a Free Enterprise paradigm, they might still be able to exist and trade their wares. For recorded music this would probably mean self-publishing (or relying on small co-operatives). The Internet would be ideally suited to such a Free Market model.

Musicians will survive but the old Recording Dinosaurs may not.


Free Enterprise Vs Corporate Enterprise

A man cannot be too careful in his choice of enemies.
--Oscar Wilde

Part of the power of the printing press was that it put printed material into the language that people actually spoke. It gave language back to the people who owned it. Today's computer technology can do a similar thing - with thought. Intellectual assets are at the core of this technology.

For the past several decades there has been a number of legal cases which illustrate how intellectual assets are being fenced off by corporations.

Some of the important milestones are:

The law is tending to favour copyright and patent owners. Some readers may think of poor starving artists or inventors shivering (or in parts of Oz we are sweltering) in their dingy, poorly lit, tiny garages, and suppose that this will be a welcome development (welcomed by the starving artist that is). Certainly that is the impression that one might gather from the media "spin".

The reality is that copyrights and patents are now more likely to be owned by corporations, and although it might be easier to stake a claim concerning intellectual property, the defence of that claim requires very deep pockets.

And major corporations have very deep pockets indeed.

This is, I contend, the most important ideological and intellectual debate in the twenty-first century.

For the last four hundred years of our history, the consensus has been that it is not possible to own ideas. Concepts such as Copyright and Patents were strictly limited to precise definitions, and were not as wide-ranging and all-encompassing as the current laws seem to be. If this seizure of intellectual assets is allowed to continue it could literally mean the end of civilisation as we (used to) know it ... Perhaps that would be a good thing.

Or perhaps it wouldn't ...

New copyright laws may limit the number times that a product can be viewed, played or listened to. Consumers will be prohibited from tampering with protection mechanisms or even examining protection software with analytical tools or probes.

Obviously they are going to need a large and well armed "Ideas Police"

They are working on that too ...

The new laws grant extraordinary powers of search and seizure, to go along with the harsh penalties.

Changes to patent law now make it possible for corporations to claim that a software component is actually an invention. It is now possible to make a patent application regarding the appearance of an interface ("look and feel"). This effectively prevents competition and enables corporations to lock away software interfaces.

The response to the locking away of intellectual assets by major corporations, has been "Open Source"! Dissidents have begun placing ideas (or rather expressions of ideas) in the public domain. Those corporations who feel most threatened by this have mounted well-funded campaigns against this practice.

Open Source probably began quite a long time ago. Organisations such as GNU and OSI can trace their lineage all the way to the very beginnings of Unix. However in the past, their activities were basic "free exchange of ideas", as already discussed. This activity has been going on in science for the last four centuries. Computer science was no different in this regard. It became a form of protest after the remarkable rise of Microsoft, in response to the aggressive pricing and anti-competitive marketing policies that corporation employed. In the last decade of the twentieth century, the open source movement started to take on a political overtone that continues to this day.

At the core of this debate is the question of ownership of ideas. Is it allowable, possible, desirable to own an idea? An algorithm? A language? A gene?

This is the ideological under-pinning of the "Open Source Debate". You can expect the debate (along with the climate) to warm up considerably. And sadly, dear reader, if you are the indecisive, fence-sitting type of reader, you will discover that sitting on the fence in this particular debate is going to become a tad uncomfortable. Like so many ideological conflicts, it comes down to "A choice of Enemies" (as Oscar Wilde put it).

On one side of the fence are the "free" wild life, gambolling, engaging in "open source" browsing on the "free" open range. On the other side of the fence are the corporate feed-lots filled with microserfs and microsofties force-fed their daily diet of corporate spin with corporate US entertainment fodder for dessert.

And last century, some of that corporate spin made predictions about the infinite nature of virtual space.

As it turns out, cyberspace has limits. Those on either side of the fence are already eying each other's territory. One side claims that certain concepts should be in the public (read "Free") domain. The other side claims that they should be in the private (read "Corporate") domain. There isn't much room for compromise. If the concepts are deemed to be in the public domain then the corporations will have to find new ways of generating revenue. If the concepts are deemed to be in the corporate domain, then Free Enterprise will have to be outlawed or severely curtailed ... It seems like a zero sum game. That's because it is a zero sum game!

As the with the MP3 case, no man's land is going to be a thin and inhospitable tract of territory between the opposing forces. The building blocks are in place: DRM, DMCA, Microsoft's ideas on linking essential components of their OS with unique hardware identifiers along with their demonstrated penchant for "built-in" obsolescence, the US/Aust FTA, US Copyright laws, etc etc ... this and many other things that you, dear reader, should acquaint yourself with, are coming soon to your little desktop (or they will if certain corporations, and the political representatives that they have purchased, have their way). Unlike the spam that currently arrives unbidden to your desktop ... you will not be able to press delete ... The power to press delete will be reserved for idea owners. And you wont be one of them! Unless you become a dissident and start contemplating ideas that don't belong to you.

Whether you like it or not you are going to end up on one side of the divide.

The crucial legal decision in the chain of events that bring us to this juncture in our history, was that which conferred citizenship rights upon corporations. Rights that had previously been associated with human (natural) citizens.

Corporations are mostly undeserving of such rights, and they further diminish our natural rights. Corporations are demanding the power to pursue what they deem to be violations of copyright or intellectual "trespass", and in the USA, legislators are granting them, even though such powers may be contrary to the principal of presumption of innocence. It will take a sustained and energetic campaign on behalf of the populace to have these trends reversed. It may have to be done in the courts rather than the ballot box, since the political process seems to have been so effectively captured by Corporate Enterprise.

Much entertainment and media content these days is tending towards software. This is due to "convergence" (changes in the way that content is being encoded). And as far as the more traditional software goes, Open Source Software has been a market reaction to the distortions imposed by unreasonable legislation (much of which has originated from the USA). If you have some Open Source Software, check the license agreement. If it is a GPL (General Public License) you will be pleasantly surprised that you can understand it.

The fact that the GPL is written in plain English does nothing to diminish its' intent. It seems that clarity is a desirable attribute that does not undermine the thrust of legal documents, although traditionally, lawyers have sought to avoid this particular device.

Now contrast your GPL with your EULA (End User License Agreement), which would have arrived with any recent Microsoft Software. You will find the language in such a document obtuse if not incomprehensible. It is an abomination, (as Australian writer Don Watkins would say) "like a vampire without fangs". You can't really understand it, but you certainly would not want it hanging around your neck. I am inclined to agree with Watkins that anyone who treats the English language with such contempt should be punished. It is hard to think of an appropriate punishment. Perhaps would-be defenders of the language can think of one?

Personally I think that the GPL will triumph. I certainly hope so. If for no other reason than the sake of the language we all know and love.

The original intents of Copyright and Patent laws were to allow a fair and reasonable reward to the author or inventor while not inhibiting innovation. The newly-extended versions of these laws will discourage innovation. The current US laws on copyright designate (retrospectively) that Copyright should extend to the lifetime of the author plus seventy years! The Disney Corporation seems to be at the head of the list of those Corporations pressing for continual extension of the law. Whenever the long-suffering Mickey Mouse approaches the long anticipated joy of walking free into the public domain, the Disney Corporation cruelly extends his sentence! (See bibliography).

And so it goes ... Anything to avoid going back to the drawing board and coming up with a new idea ...

However, all is not gloom and doom. There are signs that help may arrive from an unexpected quarter. Some corporations may already realise that it may be in their best interests to divest themselves of some of the absurd and unfair rights of citizenship, and to encourage and engage with genuine free enterprise.

These more enlightened corporations realise that there are some flaws in the approach of using Draconian law to make an example of few individuals, in order to discourage behaviour that is wide-spread, and generally considered acceptable. Such an approach has not been successful for a sustained length of time in the past, and is unlikely to be successful in today's highly connected economy. Of course these corporations will need a little (a lot?) of encouragement to continue thinking these happy thoughts. A sustained and energetic consumer campaign would no doubt help. Watch out for the stampede as corporations scramble to endorse or condemn "Open Standards". This will be an important positioning for the coming struggle. I am predicting that those that oppose "Open Standards" will perish (or be severely injured).

Of course the motives are many and diverse. Some corporations, such as IBM, have such a deep and abiding (and justified) resentment towards Microsoft, that they would gladly make a deal with devil, if it would cause Microsoft a little (or preferably a lot of) pain. And in any case, most enlightened corporations perceive that there exists a huge potential for selling services in a market that emphasises freedom of ideas, innovation and empowerment (rather than enslavement) of customers.

Corporations should be stripped of rights that were intended for natural citizens. According to some authorities (see bibliography), the original decision that conferred rights of citizenship on US corporations was a mistake! If so it was one of the most unfortunate mistakes in that nation's history. If this mistake is put right, it will restore much-needed balance to the US (and world) economy. Corporations will no longer have an inalienable right to influence and donate to political parties. And if this happy event should take place, it would be an ideal time to consider corporations' right to own intellectual assets.

You can be sure that if corporations where prevented (or at least restricted) from owning intellectual assets, the great crisis in "intellectual property" and "copyright" in the computer age would evaporate as quickly as it seems to materialised. There is no crisis! It has been manufactured by a vast multi-trillion dollar marketing and propaganda machine that has vested interests in the ongoing seizure of intellectual assets.

It may be time to revive the notion of Commonwealth, in order to gain a balance between public and private ownership. In its' original form the term was intended to denote the wealth of the commons, which takes in society and the natural environment. In the case of software, we may need to consider the notion of a Commonwealth of Ideas. The concept of Commonwealth is well understood throughout the former British Empire, and is familiar to Americans since their constitution included four states that were set up as Commonwealths.

At pretty much the level of the requirements of the average computer user, the Open Source Movement already offers a true Commonwealth of computing ideas, offerings and no-tricks software. It's because of the communication and cultural possibilities, internationally, that the issues stretch beyond a merely ideological debate between the world's remaining bolshies of pre-Cold-War days, and old-style capitalists of the Cold War days.

Such a Commonwealth could form the necessary ideological cement for a model of "Free Enterprise" consisting of small businesses offering services in the area of computing. For the price of Microsoft Server Software, another small business could hire a professional who actually understands what a server is to install and configure a network. This investment would prove to be of much greater value to the local economy then the Corporate Enterprise solution.

It is important for the Open Source Movement to stay focused on the things that make it a superior computing solution and not fall into the trap of trying to be "User Friendly" (read "dumbed-down", "not secure"). And it is important to get the message out about "Free Enterprise".


BIBLIOGRAPHY:

This is the fifth in a series of essays advocating open source. The previous essays are:

The current essay was instigated by New England writer and historian Dan Byrnes who sent me a provocative e-mail about "Bolshie" Open Source Advocates, and then engaged me in a (sometimes) passionate debate about the issues. Thanks also to Dan for the writing and editorial tips which helped turn my rambling diatribe into something that I hope resembles a reasoned discourse.

The following are some useful links on paradigms and the issues of copyright and intellectual property.
Es.rice.edu The Copernican System. This web site gives a brief summary of some of the issues surrounding the Copernican (heliocentric) model, and the role that Galileo played in the development of the paradigm. There is plenty of material on the web about this and the manner that scientific paradigms are thought to work. T.S. Kuhn is the best known exponent of this idea of scientific paradigms. Kuhn used the Copernican Revolution as a classic example. The initial model proposed by Copernicus had a few problems. He failed to address many of the issues of celestial "perfection". This included the notion of circular orbits, since the circle was considered a perfect geometric shape. The other erroneous tenet of the old paradigm pertained to the perfect nature of celestial bodies. Since the (new) Copernican model proposed that the earth was just another planet, it implied that other celestial bodies were made of the same material as earth (i.e. imperfect). It would be up to later theorists, however, to discover the elliptical nature of planetary orbits, and to trasnform the heliocentric model into a powerful (and simple) explanation of cosmology that was incontestable.

Thom Hartmann Now Corporations Claim The "Right To Lie". A brief summary of the evolution of the "rights" of corporations. From their humble and suitably constrained origins to the present day, when it seems that corporations enjoy most of the rights and privileges of "citizenship". This article gives details of the infamous Santa Clara County vs Southern Pacific Railroad case, which set an important legal precedent. It also mentions that the original decision may have been a mistake! Thom Hartmann expands on this at greater length here.

Caslon Analytics Intellectual Property Guide: Australian IP Law & Agencies. This site gives some history about the concepts of Intellectual Property, particularly as it applies to Australia.

FreeBSD.org Protect Your Freedom--Fight "Look And Feel" The absurd Lotus Look and Feel decision has generated considerable comment and dissent. This statement of principal has been produced by the League for Programming Freedom to the users of GNU CC, and could almost be considered a "manifesto". The GNU community is diverse and it is hard to get agreement on a single issue. In this case however, these views seem to be shared by most GNU advocates, contributers and users.

Kate Mackenzie Australian IT, News Item. According to this news article, staff computers at the Queensland University of Technology were being scanned for MP3 music files because of a legal battle between universities and music companies.

James Pearce ZDNet News Item. This article gives details of the sentencing of Charles Ng and Peter Tran, who were each sentenced to 18 months imprisonment, suspended for three years on a AU$1,000 good behaviour bond. Despite the fact that industry (and their media lackeys) had been howling for their blood. The magistrate told the court that the lack of monetary gain by the defendants, the youthfulness of the accused and the early plea of guilty were factors in suspending the custodial sentence.

Julian Sanchez Secrets, lies, and electronic voting. This article gives an example of how the DMCA is being abused right now in the USA. The e-voting manufacturer Diebold, which is at the centre of a voting fraud scandal is using the DMCA to fend off scrutiny and criticism.

Christopher Jones MP3 Overview. This article gives a little bit on the history of MP3, and mentions the Draconian penalties that might be incurred for using it.

PrimeCog 75 and still mousey. This article gives a brief summary of the life and times of the long suffering mouse, still doing time in the Disney vault. Unfortunately quite a few of the links in this article are broken or pay-to-view.