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\title{\textit{Anarchism Triumphant}:\\
Free Software and the Death of Copyright}
\author{Eben Moglen%
\thanks{
Professor of Law \& Legal History, Columbia Law School.  Prepared for
delivery at the Buchmann
International Conference on Law, Technology and Information, at Tel
Aviv University, May 1999; my thanks to the organizers for their kind
invitation.  I owe much as 
always to Pamela Karlan for her insight and encouragement.  Thanks are
due to Jerome Saltzer, Richard Stallman, and numerous others who
freely contributed corrections and impovements to this paper.  I
especially wish to
thank the programmers throughout the world who made free software
possible. 
 }}
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\section{Software as Property: The Theoretical Paradox}
\indent {\sc {\Huge S}oftware}: no other word so thoroughly connotes
the practical and social effects of the digital revolution.
Originally, the term was purely technical, and denoted the parts of a
computer system that, unlike ``hardware,'' which was unchangeably
manufactured in system electronics, could be altered freely.  The
first software amounted to the plug configuration of cables or
switches on the outside panels of an electronic device, but as soon as
linguistic means of altering computer behavior had been developed,
``software'' mostly denoted the expressions in more or less
human-readable language that both described and controlled machine
behavior.\footnote{The distinction was only approximate in its
original context.  By the late 1960s certain portions of the basic
operation of hardware were controlled by programs digitally encoded in
the electronics of computer equipment, not subject to change after the
units left the factory.  Such symbolic but unmodifiable components
were known in the trade as ``microcode,'' but it became conventional
to refer to them as ``firmware.''  Softness, the term ``firmware''
demonstrated, referred primarily to users' ability to alter symbols
determining machine behavior.  As the digital revolution has resulted
in the widespread use of computers by technical incompetents, most
traditional software---application programs, operating systems,
numerical control instructions, and so forth---is, for most of its
users, firmware.  It may be symbolic rather than electronic in its
construction, but they couldn't change it even if they wanted to,
which they often---impotently and resentfully---do.  This ``firming of
software'' is a primary condition of the propertarian approach to the
legal organization of digital society, which is the subject of this
paper.}

That was then and this is now.  Technology based on the manipulation
of digitally-encoded information is now socially dominant in most
aspects of human culture in the ``developed''
societies.\footnote{Within the present generation, the very conception
of social ``development'' is shifting away from possession of heavy
industry based on the internal-combustion engine to ``post-industry''
based on digital communications and the related ``knowledge-based''
forms of economic activity.}  The movement from analog to digital
representation---in video, music, printing, telecommunications, and
even choreography, religious worship, and sexual
gratification---potentially turns all forms of human symbolic activity
into software, that is, modifiable instructions for describing and
controlling the behavior of machines.  By a conceptual back-formation
characteristic of Western scientistic thinking, the division between
hardware and software is now being observed in the natural or social
world, and has become a new way to express the conflict between ideas
of determinism and free will, nature and nurture, or genes and
culture.  Our ``hardware,'' genetically wired, is our nature, and
determines us.  Our nurture is ``software,'' establishes our cultural
programming, which is our comparative freedom.  And so on, for those
reckless of blather.\footnote{Actually, a moment's thought will
reveal, our genes are firmware.  Evolution made the transition from
analog to digital before the fossil record begins.  But we haven't
possessed the power of controlled direct modification.  Until the day
before yesterday.  In the next century the genes too will become
software, and while I don't discuss the issue further in this paper,
the political consequences of unfreedom of software in this context
are even more disturbing than they are with respect to cultural
artifacts.}  Thus ``software'' becomes a viable metaphor for all
symbolic activity, apparently divorced from the technical context of
the word's origin, despite the unease raised in the technically
competent when the term is thus bandied about, eliding the conceptual
significance of its derivation.\footnote{\seeg \cite{balkin98}.}

But the widespread adoption of digital technology for use by those who
do not understand the principles of its operation, while it apparently
licenses the broad metaphoric employment of ``software,'' does not in
fact permit us to ignore the computers that are now everywhere
underneath our social skin.  The movement from analog to digital is
more important for the structure of social and legal relations than
the more famous if less certain movement from status to
contract.\footnote{\see \cite{maine61}.} This is bad news for those
legal thinkers who do not understand it, which is why so much
pretending to understand now goes so floridly on.  Potentially,
however, our great transition is very good news for those who can turn
this new-found land into property for themselves.  Which is why the
current ``owners'' of software so strongly support and encourage the
ignorance of everyone else.  Unfortunately for them---for reasons
familiar to legal theorists who haven't yet understood how to apply
their traditional logic in this area---the trick won't work.  This
paper explains why.\footnote{In general I dislike the intrusion of
autobiography into scholarship.  But because it is here my sad duty
and great pleasure to challenge the qualifications or \textit{bona
fides} of just about everyone, I must enable the assessment of my own.
I was first exposed to the craft of computer programming in 1971.  I
began earning wages as a commercial programmer in 1973---at the age of
thirteen---and did so, in a variety of computer services, engineering,
and multinational technology enterprises, until 1985.  In 1975 I helped
write one of the first networked email systems in the United States;
from 1979 I was engaged in research and development of advanced
computer programming languages at IBM.  These activities made it
economically possible for me to study the arts of historical
scholarship and legal cunning.  My wages were sufficient to pay my
tuitions, but not---to anticipate an argument that will be made by the
econodwarves further along---because my programs were the intellectual
property of my employer, but rather because they made the hardware my
employer sold work better.  Most of what I wrote was effectively free
software, as we shall see.  Although I subsequently made some
inconsiderable technical contributions to the actual free software
movement this paper describes, my primary activities on its behalf
have been legal: I have served for the past five years (without pay,
naturally) as general counsel of the Free Software Foundation.}

We need to begin by considering the technical essence of the familiar
devices that surround us in the era of ``cultural software.''  A CD
player is a good example.  Its primary input is a bitstream read from
an optical storage disk.  The bitstream describes music in terms of
measurements, taken 44,000 times per second, of frequency and
amplitude in each of two audio channels.  The player's primary output
is analog audio signals.\footnote{The player, of course, has secondary
inputs and outputs in control channels: buttons or infrared remote
control are input, and time and track display are output.}  Like
everything else in the digital world, music as seen by a CD player is
mere numeric information; a particular recording of Beethoven's Ninth
Symphony recorded by Arturo Toscanini and the NBC Symphony Orchestra
and Chorale is (to drop a few insignificant digits) 1276749873424,
while Glenn Gould's peculiarly perverse last recording of the Goldberg
Variations is (similarly rather truncated) 767459083268.

Oddly enough, these two numbers are ``copyrighted.''  This means,
supposedly, that you can't possess another copy of these numbers, once
fixed in any physical form, unless you have licensed them.  And you
can't turn 767459083268 into 2347895697 for your friends (thus
correcting Gould's ridiculous judgment about tempi) without making a
``derivative work,'' for which a license is necessary.

At the same time, a similar optical storage disk contains another
number, let us call it 7537489532.  This one is an algorithm for
linear programming of large systems with multiple constraints, useful
for example if you want to make optimal use of your rolling stock in
running a freight railroad.  This number (in the US) is ``patented,''
which means you cannot derive 7537489532 for yourself, or otherwise
``practice the art'' of the patent with respect to solving linear
programming problems no matter how you came by the idea, including
finding it out for yourself, unless you have a license from the
number's owner.

Then there's 9892454959483.  This one is the source code for Microsoft
Word.  In addition to being ``copyrighted,'' this one is a trade
secret.  That means if you take this number from Microsoft and give it
to anyone else you can be punished.

Lastly, there's 588832161316.  It doesn't do anything, it's just the
square of 767354.  As far as I know, it isn't owned by anybody under
any of these rubrics.  Yet.

\enlargethispage{16pt} At this point we must deal with our first objection from the
learned. It comes from a creature known as the IPdroid.  The droid has
a sophisticated mind and a cultured life.  It appreciates very much
the elegant dinners at academic and ministerial conferences about the
TRIPs, not to mention the privilege of frequent appearances on MSNBC.
It wants you to know that I'm committing the mistake of confusing the
embodiment with the intellectual property itself.  It's not the number
that's patented, stupid, just the Kamarkar algorithm.  The number
\emph{can} be copyrighted, because copyright covers the expressive
qualities of a particular tangible embodiment of an idea (in which
some functional properties may be mysteriously merged, provided that
they're not too merged), but not the algorithm.  Whereas the number
isn't patentable, just the ``teaching'' of the number with respect to
making railroads run on time.  And the number representing the source
code of Microsoft Word can be a trade secret, but if you find it out
for yourself (by performing arithmetic manipulation of other numbers
issued by Microsoft, for example, which is known as ``reverse
engineering''), you're not going to be punished, at least if you live
in some parts of the United States.

This droid, like other droids, is often right.  The condition of being
a droid is to know everything about something and nothing about
anything else.  By its timely and urgent intervention the droid has
established that the current intellectual property system contains
many intricate and ingenious features.  The complexities combine to
allow professors to be erudite, Congressmen to get campaign
contributions, lawyers to wear nice suits and tassel loafers, and
Murdoch to be rich.  The complexities mostly evolved in an age of
industrial information distribution, when information was inscribed in
analog forms on physical objects that cost something significant to
make, move, and sell.  When applied to digital information that moves
frictionlessly through the network and has zero marginal cost per
copy, everything still works, mostly, as long as you don't stop
squinting.

But that wasn't what I was arguing about.  I wanted to point out
something else: that our world consists increasingly of nothing but
large numbers (also known as bitstreams), and that---for reasons
having nothing to do with emergent properties of the numbers
themselves---the legal system is presently committed to treating
similar numbers radically differently.  No one can tell, simply by
looking at a number that is 100 million digits long, whether that
number is subject to patent, copyright, or trade secret protection, or
indeed whether it is ``owned'' by anyone at all.  So the legal system
we have---blessed as we are by its consequences if we are copyrights
teachers, Congressmen, Gucci-gulchers or Big Rupert himself---is
compelled to treat indistinguishable things in unlike ways.  

Now, in my role as a legal historian concerned with the secular (that
is, very long term) development of legal thought, I claim that legal
regimes based on sharp but unpredictable distinctions among similar
objects are radically unstable.  They fall apart over time because
every instance of the rules' application is an invitation to at least
one side to claim that instead of fitting in ideal category A the
particular object in dispute should be deemed to fit instead in
category B, where the rules will be more favorable to the party making
the claim.  This game---about whether a typewriter should be deemed a
musical instrument for purposes of railway rate regulation, or whether
a steam shovel is a motor vehicle---is the frequent stuff of legal
ingenuity.  But when the conventionally-approved legal categories
require judges to distinguish among the identical, the game is
infinitely lengthy, infinitely costly, and almost infinitely offensive
to the unbiased bystander.\footnote{This is not an insight unique to
our present enterprise.  A closely-related idea forms one of the most
important principles in the history of Anglo-American law, perfectly
put by Toby Milsom in the following terms: \begin{quote} The life of
the common law has been in the abuse of its elementary ideas.  If the
rules of property give what now seems an unjust answer, try
obligation; and equity has proved that from the materials of
obligation you can counterfeit the phenomena of property.  If the
rules of contract give what now seems an unjust answer, try
tort. ... If the rules of one tort, say deceit, give what now seems an
unjust answer, try another, try negligence.  And so the legal world
goes round.\end{quote}\cite[6]{milsom81}.}

Thus parties can spend all the money they want on all the legislators and
judges they can afford---which for the new ``owners'' of the digital
world is quite a few---but the rules they buy aren't going to work in
the end.  Sooner or later, the paradigms are going to collapse.  Of
course, if later means two generations from now, the distribution of
wealth and power sanctified in the meantime may not be reversible by
any course less drastic than a \textit{bellum servile} of couch
potatoes against media magnates.  So knowing that history isn't on
Bill Gates' side isn't enough.  We are predicting the future in a very
limited sense: we know that the existing rules, which have yet the
fervor of conventional belief solidly enlisted behind them, are no
longer meaningful.  Parties will use and abuse them freely until the
mainstream of ``respectable'' conservative opinion acknowledges their
death, with uncertain results.  But realistic scholarship should
already be turning its attention to the clear need for new
thoughtways. \\[1.75\parskip] \centerline{* * * * *}

When we reach this point in the argument, we find ourselves contending
with the other primary protagonist of educated idiocy: the econodwarf.
Like the IPdroid, the econodwarf is a species of
hedgehog,\footnote{\see \cite{berlin53}.} but where the droid is
committed to logic over experience, the econodwarf specializes in an
energetic and well-focused but entirely erroneous view of human
nature.  According to the econodwarf's vision, each human being is an
individual possessing ``incentives,'' which can be retrospectively
unearthed by imagining the state of the bank account at various
times.  So in this instance the econodwarf feels compelled to object
that without the rules I am lampooning, there would be no incentive to
create the things the rules treat as property: without the ability to
exclude others from music there would be no music, because no one
could be sure of getting paid for creating it.

\pagebreak Music is not really our subject; the software I am considering at the
moment is the old kind: computer programs.  But as he is determined to
deal at least cursorily with the subject, and because, as we have
seen, it is no longer really possible to distinguish computer programs
from music performances, a word or two should be said.  At least we
can have the satisfaction of indulging in an argument \textit{ad
pygmeam}.  When the econodwarf grows rich, in my experience, he attends
the opera.  But no matter how often he hears \textit{Don Giovanni}
it never occurs to him that Mozart's fate should, on his logic, have
entirely discouraged Beethoven, or that we have \textit{The Magic
Flute} even though Mozart knew very well he wouldn't be paid.  In
fact, \textit{The Magic Flute}, the \textit{St. Matthew's Passion},
and the motets of the wife-murderer Carlo Gesualdo are all part of
the centuries-long tradition of free software, in the more general
sense, which the econodwarf never quite acknowledges.

The dwarf's basic problem is that ``incentives'' is merely a metaphor,
and as a metaphor to describe human creative activity it's pretty
crummy.  I have said this before,\footnote{See \htmladdnormallinkfoot{The
Virtual Scholar and Network
Liberation.}{http://emoglen.law.columbia.edu/my\_pubs/nospeech.html}}
but the better metaphor arose on the day Michael Faraday first noticed
what happened when he wrapped a coil of wire a\-round a magnet and
spun the magnet.  Current flows in such a wire, but we don't ask what
the incentive is for the electrons to leave home.  We say that the
current results from an emergent property of the system, which we call
induction.  The question we ask is ``what's the resistance of the
wire?''  So Moglen's Metaphorical Corollary to Faraday's Law says that
if you wrap the Internet around every person on the planet and spin
the planet, software flows in the network.  It's an emergent property
of connected human minds that they create things for one another's
pleasure and to conquer their uneasy sense of being too alone.  The
only question to ask is, what's the resistance of the network?
Moglen's Metaphorical Corollary to Ohm's Law states that the
resistance of the network is directly proportional to the field
strength of the ``intellectual property'' system.  So the right answer
to the econodwarf is, resist the resistance.

Of course, this is all very well in theory.  ``Resist the resistance''
sounds good, but we'd have a serious problem, theory notwithstanding,
if the dwarf were right and we found ourselves under-producing good
software because we didn't let people own it.  But dwarves and droids
are formalists of different kinds, and the advantage of realism is
that if you start from the facts the facts are always on your side.
It turns out that treating software as property makes bad software.

\section{Software as Property: The Practical Problem} 
\indent In order to understand why turning software into property
produces bad software, we need an introduction to the history of the
art.  In fact, we'd better start with the word ``art'' itself.  The
programming of computers combines determinate reasoning with literary
invention.

At first glance, to be sure, source code appears to be a
non-literary form of composition.\footnote{Some basic vocabulary is
essential.  Digital computers actually execute numerical instructions:
bitstrings that contain information in the ``native'' language created
by the machine's designers.  This is usually referred to as ``machine
language.''  The machine languages of hardware are designed for speed
of execution at the hardware level, and are not suitable for direct
use by human beings.  So among the central components of a computer
system are ``programming languages,'' which translate expressions
convenient for humans into machine language.  The most common and
relevant, but by no means the only, form of computer language is a
``compiler.''  The compiler performs static translation, so that a
file containing human-readable instructions, known as ``source code''
results in the generation of one or more files of executable machine
language, known as ``object code.''}  The primary desideratum in a
computer program is that it works, that is to say, performs according
to specifications formally describing its outputs in terms of its
inputs.  At this level of generality, the functional content of
programs is all that can be seen.

But working computer programs exist as parts of computer systems,
which are interacting collections of hardware, software, and
human beings.  The human components of a computer system include not
only the users, but also the (potentially different) persons who
maintain and improve the system.  Source code not only communicates
with the computer that executes the program, through the intermediary
of the compiler that produces machine-language object code, but also
with other programmers.

The function of source code in relation to other human beings is not
widely grasped by non-programmers, who tend to think of computer
programs as incomprehensible.  They would be surprised to learn that
the bulk of information contained in most programs is, from the point
of view of the compiler or other language processor, ``comment,'' that
is, non-functional material.  The comments, of course, are addressed
to others who may need to fix a problem or to alter or enhance the
program's operation.  In most programming languages, far more space is
spent in telling people what the program does than in telling the
computer how to do it.

The design of programming languages has always proceeded under the
dual requirements of complete specification for machine execution and
informative description for human readers.  One might identify three
basic strategies in language design for approaching this dual purpose.
The first, pursued initially with respect to the design of languages
specific to particular hardware products and collectively known as
``assemblers,'' essentially separated the human- and
machine-communication portions of the program.  Assembler instructions
are very close relatives of machine-language instructions: in general,
one line of an assembler program corresponds to one instruction in the
native language of the machine.  The programmer controls machine
operation at the most specific possible level, and (if
well-disciplined) engages in running commentary alongside the machine
instructions, pausing every few hundred instructions to create ``block
comments,'' which provide a summary of the strategy of the program, or
document the major data structures the program manipulates.

A second approach, characteristically depicted by the language
COBOL (which stood for ``Common Business-Oriented Language''), was to
make the program itself look like a set of natural language
directions, written in a crabbed but theoretically human-readable
style.  A line of COBOL code might say, for example ``MULTIPLY
PRICE TIMES QUANTITY GIVING EXPANSION.''  At first, when the Pentagon
and industry experts began the joint design of COBOL in the early
1960s, this seemed a promising approach.  COBOL programs appeared
largely self-documenting, allowing both the development of work teams
able to collaborate on the creation of large programs, and the
training of programmers who, while specialized workers, would not need
to understand the machine as intimately as assembler programs had to.
But the level of generality at which such programs documented
themselves was wrongly selected.  A more formulaic and compressed
expression of operational detail ``expansion = price x quantity,'' for
example, was better suited even to business and financial applications
where the readers and writers of programs were accustomed to
mathematical expression, while the processes of describing both data
structures and the larger operational context of the program were not
rendered unnecessary by the wordiness of the language in which the
details of execution were specified.

Accordingly, language designers by the late 1960s began experimenting
with forms of expression in which the blending of operational details
and non-functional information necessary for modification or repair
was more subtle.  Some designers chose the path of highly symbolic and
compressed languages, in which the programmer manipulated data
abstractly, so that ``A x B'' might mean the multiplication of two
integers, two complex numbers, two vast arrays, or any other data type
capable of some process called ``multiplication,'' to be undertaken by
the computer on the basis of the context for the variables ``A'' and
``B'' at the moment of execution.\footnote{This, I should say, was the
path that most of my research and development followed, largely in
connection with a language called APL (``A Programming Language'') and
its successors.  It was not, however, the ultimately-dominant
approach, for reasons that will be suggested below.}  Because this
approach resulted in extremely concise programs, it was thought, the
problem of making code comprehensible to those who would later seek to
modify or repair it was simplified.  By hiding the technical detail of
computer operation and emphasizing the algorithm, languages could be
devised that were better than English or other natural languages for
the expression of stepwise processes.  Commentary would be not only
unnecessary but distracting, just as the metaphors used to convey
mathematical concepts in English do more to confuse than to enlighten.
\subsection{How We Created the Microbrain Mess}
\indent Thus the history of programming languages directly reflected the need
to find forms of human-machine communication that were also effective
in conveying complex ideas to human readers.  ``Expressivity'' became
a property of programming languages, not because it facilitated
computation, but because it facilitated the collaborative creation and
maintenance of increasingly complex software systems.

At first impression, this seems to justify the application of
traditional copyright thinking to the resulting works.  Though
substantially involving ``functional'' elements, computer programs
contained ``expressive'' features of paramount importance.  Copyright
doctrine recognized the merger of function and expression as
characteristic of many kinds of copyrighted works.  ``Source code,''
containing both the machine instructions necessary for functional
operation and the expressive ``commentary'' intended for human
readers, was an appropriate candidate for copyright treatment.

True, so long as it is understood that the expressive component of
software was present solely in order to facilitate the making of
``derivative works.''  Were it not for the intention to facilitate
alteration, the expressive elements of programs would be entirely
supererogatory, and source code would be no more copyrightable than
object code, the output of the language processor, purged of all but
the program's functional characteristics.

The state of the computer industry throughout the 1960s and 1970s,
when the grundnorms of sophisticated computer programming were
established, concealed the tension implicit in this situation.  In
that period, hardware was expensive.  Computers were increasingly
large and complex collections of machines, and the business of
designing and building such an array of machines for general use was
dominated, not to say monopolized, by one firm.  IBM gave away its
software.  To be sure, it owned the programs its employees wrote, and
it copyrighted the source code.  But it also distributed the
programs---including the source code---to its customers at no
additional charge, and encouraged them to make and share improvements
or adaptations of the programs thus distributed.  For a dominant
hardware manufacturer, this strategy made sense: better programs sold
more computers, which is where the profitability of the business
rested.

Computers, in this period, tended to aggregate within particular
organizations, but not to communicate broadly with one another.  The
software needed to operate was distributed not through a network, but
on spools of magnetic tape.  This distribution system tended to
centralize software development, so that while IBM customers were free
to make modifications and improvements to programs, those
modifications were shared in the first instance with IBM, which then
considered whether and in what way to incorporate those changes in the
centrally-developed and distributed version of the software.  Thus in
two important senses the best computer software in the world was free:
it cost nothing to acquire, and the terms on which it was furnished
both allowed and encouraged experimentation, change, and
improvement.\footnote{This description elides some details.  By the
mid-1970s IBM had acquired meaningful competition in the mainframe
computer business, while the large-scale antitrust action brought
against it by the US government prompted the decision to ``unbundle,''
or charge separately, for software.  In this less important sense,
software ceased to be free.  But---without entering into the now-dead
but once-heated controversy over IBM's software pricing policies---the
unbundling revolution had less effect on the social practices of
software manufacture than might be supposed.  As a fellow responsible
for technical improvement of one programming language product at IBM
from 1979 to 1984, for example, I was able to treat the product as
``almost free,'' that is, to discuss with users the changes they had
proposed or made in the programs, and to engage with them in
cooperative development of the product for the benefit of all users.}
That the software in question was IBM's property under prevailing
copyright law certainly established some theoretical limits on users'
ability to distribute their improvements or adaptations to others, but
in practice mainframe software was cooperatively developed by the
dominant hardware manufacturer and its technically-sophisticated
users, employing the manufacturer's distribution resources to
propagate the resulting improvements through the user community.  The
right to exclude others, one of the most important ``sticks in the
bundle'' of property rights (in an image beloved of the United States
Supreme Court), was practically unimportant, or even undesirable, at
the heart of the software business.\footnote{This description is
highly compressed, and will seem both overly simplified and unduly
rosy to those who also worked in the industry during this period of
its development.  Copyright protection of computer software was a
controversial subject in the 1970s, leading to the famous CONTU
commission and its mildly pro-copyright recommendations of 1979.  And
IBM seemed far less cooperative to its users at the time than this
sketch makes out.  But the most important element is the contrast with
the world created by the PC, the Internet, and the dominance of
Microsoft, with the resulting impetus for the free software movement,
and I am here concentrating on the features that express that
contrast.}

After 1980, everything was different.  The world of mainframe hardware
gave way within ten years to the world of the commodity PC.  And, as a
contingency of the industry's development, the single most important
element of the software running on that commodity PC, the operating
system, became the sole significant product of a company that made no
hardware.  High-quality basic software ceased to be part of the
product-differentiation strategy of hardware manufacturers.  Instead,
a firm with an overwhelming share of the market, and with the
near-monopolist's ordinary absence of interest in fostering diversity,
set the practices of the software industry.  In such a context, the
right to exclude others from participation in the product's formation
became profoundly important.  Microsoft's power in the market rested
entirely on its ownership of the Windows source code.

To Microsoft, others' making of ``derivative works,'' otherwise known
as repairs and improvements, threatened the central asset of the
business.  Indeed, as subsequent judicial proceedings have tended to
establish, Microsoft's strategy as a business was to find innovative
ideas elsewhere in the software marketplace, buy them up and either
suppress them or incorporate them in its proprietary product.  The
maintenance of control over the basic operation of computers
manufactured, sold, possessed, and used by others represented profound
and profitable leverage over the development of the
culture;\footnote{I discuss the importance of PC software in this
context, the evolution of ``the market for eyeballs'' and ``the
sponsored life'' in other chapters of my forthcoming book, \textit{The
Invisible Barbecue}, of which this essay forms a part.} the right to
exclude returned to center stage in the concept of software as
property.

The result, so far as the quality of software was concerned, was
disastrous.  The monopoly was a wealthy and powerful corporation that
employed a large number of programmers, but it could not possibly
afford the number of testers, designers, and developers required to
produce flexible, robust and technically-innovative software
appropriate to the vast array of conditions under which increasingly
ubiquitous personal computers operated.  Its fundamental marketing
strategy involved designing its product for the least
technically-sophisticated users, and using ``fear, uncertainty, and
doubt'' (known within Microsoft as ``FUD'') to drive sophisticated
users away from potential competitors, whose long-term survivability
in the face of Microsoft's market power was always in question.

Without the constant interaction between users able to repair and
improve and the operating system's manufacturer, the inevitable
deterioration of quality could not be arrested.  But because the
personal computer revolution expanded the number of users
exponentially, almost everyone who came in contact with the resulting
systems had nothing against which to compare them.  Unaware of the
standards of stability, reliability, maintainability and effectiveness
that had previously been established in the mainframe world, users of
personal computers could hardly be expected to understand how badly,
in relative terms, the monopoly's software functioned.  As the power
and capacity of personal computers expanded rapidly, the defects of
the software were rendered less obvious amidst the general increase of
productivity.  Ordinary users, more than half afraid of the technology
they almost completely did not understand, actually welcomed the
defectiveness of the software.  In an economy undergoing mysterious
transformations, with the concomitant destabilization of millions of
careers, it was tranquilizing, in a perverse way, that no personal
computer seemed to be able to run for more than a few consecutive
hours without crashing.  Although it was frustrating to lose work in
progress each time an unnecessary failure occurred, the evident
fallibility of computers was intrinsically reassuring.\footnote{This
same pattern of ambivalence, in which bad programming leading to
widespread instability in the new technology is simultaneously
frightening and reassuring to technical incompetents, can be seen also
in the primarily-American phenomenon of Y2K hysteria.}

None of this was necessary.  The low quality of personal computer
software could have been reversed by including users directly in the
inherently evolutionary process of software design and implementation.
A Lamarckian mode, in which improvements could be made anywhere, by
anyone, and inherited by everyone else, would have wiped out the
deficit, restoring to the world of the PC the stability and
reliability of the software made in the quasi-propertarian environment
of the mainframe era.  But the Microsoft business model precluded
Lamarckian inheritance of software improvements.  Copyright doctrine,
in general and as it applies to software in particular, biases the
world towards creationism; in this instance, the problem is that BillG
the Creator was far from infallible, and in fact he wasn't even trying.

To make the irony more severe, the growth of the network rendered
the non-propertarian alternative even more practical.  What scholarly
and popular writing alike denominate as a thing (``the Internet'') is
actually the name of a social condition: the fact that everyone in the
network society is connected directly, without intermediation, to
everyone else.\footnote{The critical implications of this simple
observation about our metaphors are worked out in ``How Not to Think
about 'The Internet'," in \textit{The Invisible Barbecue},
forthcoming.}  The global interconnection of networks eliminated the
bottleneck that had required a centralized software
manufacturer to rationalize and distribute the outcome of individual
innovation in the era of the mainframe.

And so, in one of history's little ironies, the global triumph of bad
software in the age of the PC was reversed by a surprising combination
of forces: the social transformation initiated by the network, a
long-discarded European theory of political economy, and a small band
of programmers throughout the world mobilized by a single simple idea.

\subsection{Software Wants to Be Free; or, How We Stopped Worrying and
Learned to Love the Bomb}

\indent Long before the network of networks was a practical reality,
even before it was an aspiration, there was a desire for computers to
operate on the basis of software freely available to everyone.  This
began as a reaction against propertarian software in the mainframe
era, and requires another brief historical digression.

Even though IBM was the largest seller of general purpose
computers in the mainframe era, it was not the largest designer and
builder of such hardware.  The telephone monopoly, American Telephone
\& Telegraph, was in fact larger than IBM, but it consumed its products
internally.  And at the famous Bell Labs research arm of the telephone
monopoly, in the late 1960s, the developments in computer languages
previously described gave birth to an operating system called Unix.

The idea of Unix was to create a single, scalable operating system to
exist on all the computers, from small to large, that the telephone
monopoly made for itself.  To achieve this goal meant writing an
operating system not in machine language, nor in an assembler whose
linguistic form was integral to a particular hardware design, but in a
more expressive and generalized language.  The one chosen was also a
Bell Labs invention, called ``C.''\footnote{Technical readers will
again observe that this compresses developments occurring from 1969
through 1973.}  The C language became common, even dominant, for many
kinds of programming tasks, and by the late 1970s the Unix operating
system written in that language had been transferred (or ``ported,''
in professional jargon) to computers made by many manufacturers and of
many designs.

AT\&T distributed Unix widely, and because of the very design of the
operating system, it had to make that distribution in C source code.
But AT\&T retained ownership of the source code and compelled users to
purchase licenses that prohibited redistribution and the making of
derivative works.  Large computing centers, whether industrial or
academic, could afford to purchase such licenses, but individuals
could not, while the license restrictions prevented the community of
programmers who used Unix from improving it in an evolutionary rather
than episodic fashion.  And as programmers throughout the world began
to aspire to and even expect a personal computer revolution, the
``unfree'' status of Unix became a source of concern.

Between 1981 and 1984, one man envisioned a crusade to change
the situation.  Richard M. Stallman, then an employee of MIT's
Artificial Intelligence Laboratory, conceived the project of
independent, collaborative redesign and implementation of an operating
system that would be true free software.  In Stallman's phrase, free
software would be a matter of freedom, not of price.  Anyone could
freely modify and redistribute such software, or sell it, subject only
to the restriction that he not try to reduce the rights of others to
whom he passed it along.  In this way free software could become a
self-organizing project, in which no innovation would be lost through
proprietary exercises of rights.  The system, Stallman decided, would
be called GNU, which stood (in an initial example of a taste for
recursive acronyms that has characterized free software ever since),
for ``GNU's Not Unix.''  Despite misgivings about the fundamental
design of Unix, as well as its terms of distribution, GNU was intended
to benefit from the wide if unfree source distribution of Unix.
Stallman began Project GNU by writing components of the eventual
system that were also designed to work without modification on
existing Unix systems.  Development of the GNU tools could thus
proceed directly in the environment of university and other advanced
computing centers around the world.

\pagebreak The scale of such a project was immense.
Somehow, volunteer programmers had to be found, organized, and set to
work building all the tools that would be necessary for the ultimate
construction.  Stallman himself was the primary author of several
fundamental tools.  Others were contributed by small or large teams of
programmers elsewhere, and assigned to Stallman's project or
distributed directly.  A few locations around the developing network
became archives for the source code of these GNU components, and
throughout the 1980s the GNU tools gained recognition and acceptance
by Unix users throughout the world.  The stability, reliability, and
maintainability of the GNU tools became a by-word, while Stallman's
profound abilities as a designer continued to outpace, and provide
goals for, the evolving process.  The award to Stallman of a MacArthur
Fellowship in 1990 was an appropriate recognition of his conceptual
and technical innovations and their social consequences.

Project GNU, and the Free Software Foundation to which it gave birth
in 1985, were not the only source of free software ideas.  Several
forms of copyright license designed to foster free or partially free
software began to develop in the academic community, mostly around the
Unix environment.  The University of California Berkeley began the
design and implementation of another version of Unix for free
distribution in the academic community.  BSD Unix, as it came to be
known, also treated AT\&T's Unix as a design standard.  The code was
broadly released and constituted a reservoir of tools and techniques,
but its license terms limited the range of its application, while the
elimination of hardware-specific proprietary code from the
distribution meant that no one could actually build a working
operating system for any particular computer from BSD.  Other
university-based work also eventuated in quasi-free software; the
graphical user interface (or GUI) for Unix systems called X Windows,
for example, was created at MIT and distributed with source code on
terms permitting free modification.  And in 1989-1990, an
undergraduate computer science student at the University of Helsinki,
Linus Torvalds, began the project that completed the circuit and fully
energized the free software vision.

What Torvalds did was to begin adapting a computer science teaching
tool for real life use.  Andrew Tannenbaum's MINIX
kernel,\footnote{Operating systems, even Windows (which hides the fact
from its users as thoroughly as possible), are actually collections of
components, rather than undivided unities.  Most of what an operating
system does (manage file systems, control process execution, etc.) can
be abstracted from the actual details of the computer hardware on
which the operating system runs.  Only a small inner core of the
system must actually deal with the eccentric peculiarities of
particular hardware.  Once the operating system is written in a
general language such as C, only that inner core, known in the trade
as the kernel, will be highly specific to a particular computer
architecture.} was a staple of Operating Systems courses,
providing an example of basic solutions to basic problems.  Slowly, and
at first without recognizing the intention, Linus began turning the
MINIX kernel into an actual kernel for Unix on the Intel x86
processors, the engines that run the world's commodity PCs.  As Linus
began developing this kernel, which he named Linux, he realized that
the best way to make his project work would be to adjust his design
decisions so that the existing GNU components would be compatible with
his kernel.

The result of Torvalds' work was the release on the net in 1991 of a
sketchy working model of a free software kernel for a Unix-like
operating system for PCs, fully compatible with and designed
convergently with the large and high-quality suite of system
components created by Stallman's Project GNU and distributed by the
Free Software Foundation.  Because Torvalds chose to release the Linux
kernel under the Free Software Foundation's General Public License, of
which more below, the hundreds and eventually thousands of programmers
around the world who chose to contribute their effort towards the
further development of the kernel could be sure that their efforts
would result in permanently free software that no one could turn into
a proprietary product.  Everyone knew that everyone else would be able
to test, improve, and redistribute their improvements.  Torvalds
accepted contributions freely, and with a genially effective style
maintained overall direction without dampening enthusiasm.  The
development of the Linux kernel proved that the Internet made it
possible to aggregate collections of programmers far larger than any
commercial manufacturer could afford, joined almost non-hierarchically
in a development project ultimately involving more than one million
lines of computer code---a scale of collaboration among geographically
dispersed unpaid volunteers previously unimaginable in human
history.\footnote{A careful and creative analysis of how Torvalds made
this process work, and what it implies for the social practices of
creating software, was provided by Eric S. Raymond in his seminal 1997
paper, \htmladdnormallinkfoot{The Cathedral and the Bazaar,}
{http://www.tuxedo.org/\~{}esr/writings/cathedral-bazaar/} which
itself played a significant role in the expansion of the free software
idea.}

By 1994, Linux had reached version 1.0, representing a usable
production kernel.  Level 2.0 was reached in 1996, and by 1998, with
the kernel at 2.2.0 and available not only for x86 machines but for a
variety of other machine architectures, GNU/Linux---the combination of
the Linux kernel and the much larger body of Project GNU
components---and Windows NT were the only two operating systems in the
world gaining market share.  A Microsoft internal assessment of the
situation leaked in October 1998 and subsequently acknowledged by the
company as genuine concluded that ``Linux represents a best-of-breed
UNIX, that is trusted in mission critical applications, and---due to
it's [sic] open source code---has a long term credibility which
exceeds many other competitive OS's.''\footnote{This is a quotation
from what is known in the trade as the ``Halloween memo,'' which can
be found, as annotated by Eric Raymond, to whom it was leaked, at
\htmlcite{http://www.opensource.org/halloween1.html}{http://www.opensource.org/halloween1.html}.}
GNU/Linux systems are now used throughout the world, operating
everything from web servers at major electronic commerce sites to
``ad-hoc supercomputer'' clusters to the network infrastructure of
money-center banks.  GNU/Linux is found on the space shuttle, and
running behind-the-scenes computers at (yes) Microsoft.  Industry
evaluations of the comparative reliability of Unix systems have
repeatedly shown that Linux is far and away the most stable and
reliable Unix kernel, with a reliability exceeded only by the GNU
tools themselves.  GNU/Linux not only out-performs commercial
proprietary Unix versions for PCs in benchmarks, but is renowned for
its ability to run, undisturbed and uncomplaining, for months on end
in high-volume high-stress environments without crashing.

Other components of the free software movement have been equally
successful.  Apache, far and away the world's leading web server
program, is free software, as is Perl, the programming language which
is the lingua franca for the programmers who build sophisticated
websites.  Netscape Communications now distributes its Netscape
Communicator 5.0 browser as free software, under a close variant of
the Free Software Foundation's General Public License.  Major PC
manufacturers, including IBM, have announced plans or are already
distributing GNU/Linux as a customer option on their top-of-the-line
PCs intended for use as web- and fileservers.  Samba, a program that
allows GNU/Linux computers to act as Windows NT fileservers, is used
worldwide as an alternative to Windows NT Server, and
provides effective low-end competition to Microsoft in its own home
market.  By the standards of software
quality that have been recognized in the industry for decades---and
whose continuing relevance will be clear to you the next time your
Windows PC crashes---the news at century's end is unambiguous.  The
world's most profitable and powerful corporation comes in a distant
second, having excluded all but the real victor from the race.
Propertarianism joined to capitalist vigor destroyed meaningful
commercial competition, but when it came to making good software,
anarchism won.
\section{Anarchism as a Mode of Production} 
\indent It's a pretty story, and if only the IPdroid and the
econodwarf hadn't been blinded by theory, they'd have seen it coming.
But though some of us had been working for it and predicting it for
years, the theoretical consequences are so subversive for the
thoughtways that maintain our dwarves and droids in comfort that they
can hardly be blamed for refusing to see.  The facts proved that
something was wrong with the ``incentives'' metaphor that underprops
conventional intellectual property reasoning.\footnote{As recently as
early 1994 a talented and technically competent (though Windows-using)
law and economics scholar at a major US law school confidently
informed me that free software couldn't possibly exist, because no one
would have any incentive to make really sophisticated programs
requiring substantial investment of effort only to give them away.}
But they did more.  They provided an initial glimpse into the future
of human creativity in a world of global interconnection, and it's not
a world made for dwarves and droids.

My argument, before we paused for refreshment in the real world, can
be summarized this way: Software---whether executable programs, music,
visual art, liturgy, weaponry, or what have you---consists of
bitstreams, which although essentially indistinguishable are treated
by a confusing multiplicity of legal categories.  This multiplicity is
unstable in the long term for reasons integral to the legal process.
The unstable diversity of rules is caused by the need to distinguish
among kinds of property interests in bitstreams.  This need is
primarily felt by those who stand to profit from the socially
acceptable forms of monopoly created by treating ideas as property.
Those of us who are worried about the social inequity and cultural
hegemony created by this intellectually unsatisfying and morally
repugnant regime are shouted down.  Those doing the shouting, the
dwarves and the droids, believe that these property rules are
necessary not from any overt yearning for life in
Murdochworld---though a little luxurious co-optation is always
welcome---but because the metaphor of incentives, which they take to
be not just an image but an argument, proves that these
rules---despite their lamentable consequences---are necessary if we
are to make good software.  The only way to continue to believe this
is to ignore the facts.  At the center of the digital revolution, with
the executable bitstreams that make everything else possible,
propertarian regimes not only do not make things better, they can make
things radically worse.  Property concepts, whatever else may be wrong
with them, do not enable and have in fact retarded progress.

But what is this mysterious alternative?  Free software exists, but
what are its mechanisms, and how does it generalize towards a
non-propertarian theory of the digital society? 

\subsection{The Legal Theory of Free Software}

There is a myth, like most myths partially founded on reality, that
computer programmers are all libertarians.  Right-wing ones are
capitalists, cleave to their stock options, and disdain taxes, unions,
and civil rights laws; left-wing ones hate the market and all
government, believe in strong encryption no matter how much nuclear
terrorism it may cause,\footnote{This question too deserves special
scrutiny, encrusted as it is with special pleading on the state-power
side.  See my brief essay \htmladdnormallinkfoot{``\textit{So Much for Savages}: Navajo 1,
Government 0 in Final Moments of Play,''}{http://emoglen.law.columbia.edu/my\_pubs/yu-encrypt.html}} and dislike
Bill Gates because he's rich.  There is doubtless a foundation for
this belief.  But the most significant difference between political
thought inside the digirati and outside it is that in the network
society, anarchism (or more properly, anti-possessive individualism)
is a viable political philosophy.

The center of the free software movement's success, and the greatest
achievement of Richard Stallman, is not a piece of computer code.  The
success of free software, including the overwhelming success of
GNU/Linux, results from the ability to harness extraordinary
quantities of high-quality effort for projects of immense size and
profound complexity.  And this ability in turn results from the legal
context in which the labor is mobilized.  As a visionary designer
Richard Stallman created more than Emacs, GDB, or GNU.  He created the
General Public License.

The GPL,\footnote{See \htmladdnormallinkfoot{GNU General Public
License, Version 2, June 1991,}{http://www.fsf.org/copyleft/gpl.txt}}
also known as the copyleft, uses copyright, to paraphrase Toby Milsom,
to counterfeit the phenomena of anarchism.  As the license preamble
expresses it:
\begin{quotation}
When we speak of free software, we are referring to freedom, not
price.  Our General Public Licenses are designed to make sure that you
have the freedom to distribute copies of free software (and charge for
this service if you wish), that you receive source code or can get it
if you want it, that you can change the software or use pieces of it
in new free programs; and that you know you can do these things.

To protect your rights, we need to make restrictions that forbid
anyone to deny you these rights or to ask you to surrender the rights.
These restrictions translate to certain responsibilities for you if you
distribute copies of the software, or if you modify it.

For example, if you distribute copies of such a program, whether
gratis or for a fee, you must give the recipients all the rights that
you have.  You must make sure that they, too, receive or can get the
source code.  And you must show them these terms so they know their
rights.
\end{quotation}

Many variants of this basic free software idea have been expressed in
licenses of various kinds, as I have already indicated.  The GPL is
different from the other ways of expressing these values in one
crucial respect.  Section 2 of the license provides in pertinent part:

\begin{quotation}
You may modify your copy or copies of the Program or any
portion of it, thus forming a work based on the Program, and copy and
distribute such modifications or work ..., provided that you also meet
all of these conditions: 

...

    b) You must cause any work that you distribute or publish, that in
    whole or in part contains or is derived from the Program or any
    part thereof, to be licensed as a whole at no charge to all third
    parties under the terms of this License.
\end{quotation}

Section 2(b) of the GPL is sometimes called ``restrictive,'' but its
intention is liberating.  It creates a commons, to which anyone may
add but from which no one may subtract.  Because of \S2(b), each
contributor to a GPL'd project is assured that she, and all other
users, will be able to run, modify and redistribute the program
indefinitely, that source code will always be available, and that,
unlike commercial software, its longevity cannot be limited by the
contingencies of the marketplace or the decisions of future
developers.  This ``inheritance'' of the GPL has sometimes been
criticized as an example of the free software movement's
anti-commercial bias.  Nothing could be further from the truth.  The
effect of \S2(b) is to make commercial distributors of free software
better competitors against proprietary software businesses.  For
confirmation of this point, one can do no better than to ask the
proprietary competitors.  As the author of the Microsoft ``Halloween''
memorandum, Vinod Vallopillil, put it:
\begin{quote}The GPL and its aversion to code forking
reassures customers that they aren't riding an evolutionary `dead-end' by
subscribing to a particular commercial version of Linux.

The "evolutionary dead-end" is the core of the software FUD
argument.\footnote{\htmladdnormallinkfoot{V. Vallopillil, Open Source
Software: A (New?) Development
Methodology,}{http://www.opensource.org/halloween1.html}}\end{quote}

Translated out of Microspeak, this means that the strategy by which
the dominant proprietary manufacturer drives customers away from
competi\-tors---by sowing fear, uncertainty and doubt about other
software's long-term viability---is ineffective with respect to GPL'd
programs.  Users of GPL'd code, including those who purchase software
and systems from a commercial reseller, know that future improvements
and repairs will be accessible from the commons, and need not fear
either the disappearance of their supplier or that someone will use a
particularly attractive improvement or a desperately necessary repair
as leverage for ``taking the program private.''

This use of intellectual property rules to create a commons in
cyberspace is the central institutional structure enabling the
anarchist triumph.  Ensuring free access and enabling modification at
each stage in the process means that the evolution of software occurs
in the fast Lamarckian mode: each favorable acquired characteristic of
others' work can be directly inherited.  Hence the speed with which
the Linux kernel, for example, outgrew all of its proprietary
predecessors.  Because defection is impossible, free riders are
welcome, which resolves one of the central puzzles of collective
action in a propertarian social system.  

Non-propertarian production is also directly responsible for the
famous stability and reliability of free software, which arises from
what Eric Raymond calls ``Linus' law'': With enough eyeballs, all bugs
are shallow.  In practical terms, access to source code means that if
I have a problem I can fix it.  Because I can fix it, I almost never
have to, because someone else has almost always seen it and fixed it
first.  

For the free software community, commitment to anarchist production
may be a moral imperative; as Richard Stallman wrote, it's about
freedom, not about price.  Or it may be a matter of utility, seeking
to produce better software than propertarian modes of work will allow.
From the droid point of view, the copyleft represents the
perversion of theory, but better than any other proposal over the past
decades it resolves the problems of applying copyright to the
inextricably merged functional and expressive features of computer
programs.  That it produces better software than the alternative does
not imply that traditional copyright principles should now be
prohibited to those who want to own and market inferior software
products, or (more charitably) whose products are too narrow in appeal
for communal production.  But our story should serve as a warning to
droids: The world of the future will bear little relation to the world
of the past.  The rules are now being bent in two directions.  The
corporate owners of ``cultural icons'' and other assets who seek
ever-longer terms for corporate authors, converting the ``limited
Time'' of Article I, \S8 into a freehold have naturally been whistling
music to the android ear.\footnote{The looming expiration of Mickey
Mouse's ownership by Disney requires, from the point of view of that
wealthy ``campaign contributor,'' for example, an alteration of the
general copyright law of the United States.  See ``Not Making it Any
More?  Vaporizing the Public Domain,'' in \textit{The Invisible
Barbecue}, forthcoming.}  After all, who bought the droids their
concert tickets?  But as the propertarian position seeks to embed
itself ever more strongly, in a conception of copyright liberated from
the minor annoyances of limited terms and fair use, at the very center
of our ``cultural software'' system, the anarchist counter-strike has
begun.  Worse is yet to befall the droids, as we shall see.  But
first, we must pay our final devoirs to the dwarves.

\subsection{Because It's There: Faraday's Magnet and Human Creativity}
\indent After all, they deserve an answer.  Why do people make free
software if they don't get to profit?  Two answers have usually been
given.  One is half-right and the other is wrong, but both are
insufficiently simple.

The wrong answer is embedded in numerous references to ``the hacker
gift-exchange culture.''  This use of ethnographic jargon wandered
into the field some years ago and became rapidly, if misleadingly,
ubiquitous.  It reminds us only that the economeretricians have so
corrupted our thought processes that any form of non-market economic
behavior seems equal to every other kind.  But gift-exchange, like
market barter, is a propertarian institution.  Reciprocity is central
to these symbolic enactments of mutual dependence, and if either the
yams or the fish are short-weighted, trouble results.  Free software,
at the risk of repetition, is a commons: no reciprocity ritual is
enacted there.  A few people give away code that others sell, use,
change, or borrow wholesale to lift out parts for something else.
Notwithstanding the very large number of people (tens of thousands, at
most) who have contributed to GNU/Linux, this is orders of magnitude
less than the number of users who make no contribution
whatever.\footnote{A recent industry estimate puts the number of Linux
systems worldwide at 7.5 million.  See \htmladdnormallinkfoot{Josh
McHugh, Linux: The Making of a Global Hack, Forbes, August 10,
1998.}{http://www.forbes.com/forbes/98/0810/6203094s1.htm}  Because the
software is freely obtainable throughout the net, there is no simple
way to assess actual usage.}

A part of the right answer is suggested by the claim that free
software is made by those who seek reputational compensation for their
activity.  Famous Linux hackers, the theory is, are known all over the
planet as programming deities.  From this they derive either enhanced
self-esteem or indirect material advancement.\footnote{Eric Raymond is
a partisan of the ``ego boost'' theory, to which he adds another
faux-ethnographic comparison, of free software composition to the
Kwakiutl potlatch.  See \htmladdnormallinkfoot{Eric S. Raymond,
Homesteading the
Noosphere.}{http://www.tuxedo.org/\~{}esr/writings/homesteading}.  But
the potlatch, certainly a form of status competition, is unlike free
software for two fundamental reasons: it is essentially hierarchical,
which free software is not, and, as we have known since Thorstein
Veblen first called attention to its significance, it is a form of
conspicuous waste.  See \cite[(1st ed. 1899), 75]{veblen67}.  These
are precisely the grounds which distinguish the anti-hierarchical and
utilitiarian free software culture from its propertarian
counterparts.}  But the programming deities, much as they have
contributed to free software, have not done the bulk of the work.
Reputations, as Linus Torvalds himself has often pointed out, are made
by willingly acknowledging that it was all done by someone else.  And,
as many observers have noted, the free software movement has also
produced superlative documentation.  Documentation-writing is not what
hackers do to attain cool, and much of the documentation has been
written by people who didn't write the code.  Nor must we limit the
indirect material advantages of authorship to increases in
reputational capital.  Most free software authors I know have day jobs
in the technology industries, and the skills they hone in the more
creative work they do outside the market no doubt sometimes measurably
enhance their value within it.  And as the free software products
gained critical mass and became the basis of a whole new set of
business models built around commercial distribution of that which
people can also get for nothing, an increasing number of people are
specifically employed to write free software.  But in order to be
employable in the field, they must already have established themselves
there.  Plainly, then, this motive is present, but it isn't the whole
explanation.

Indeed, the rest of the answer is just too simple to have received its
due.  The best way to understand is to follow the brief and otherwise
unsung career of an initially-grudging free software author.
Microsoft's Vinod Vallopillil, in the course of writing the
competitive analysis of Linux that was leaked as the second of the
famous ``Halloween memoranda,'' bought and installed a Linux system on
one of his office computers.  He had trouble because the (commercial)
Linux distribution he installed did not contain a daemon to handle the
DHCP protocol for assignment of dynamic IP addresses.  The result was
important enough for us to risk another prolonged exposure to the
Microsoft Writing Style:
\begin{quotation}
A small number of web sites and FAQs later, I found an FTP site with a
Linux DHCP client. The DHCP client was developed by an engineer
employed by Fore Systems (as evidenced by his email address; I
believe, however, that it was developed in his own free time). A
second set of documentation/manuals was written for the DHCP client by
a hacker in \textit{Hungary} which provided relatively simple
instructions on how to install/load the client.

I downloaded \& uncompressed the client and typed two
simple commands:

Make - compiles the client binaries

Make Install -installed the binaries as a Linux Daemon

Typing "DHCPCD" (for DHCP Client Daemon) on the command line triggered
the DHCP discovery process and voila, I had IP
networking running.

Since I had just downloaded the DHCP client code, on an impulse I
played around a bit.  Although the client wasn't as extensible as the
DHCP client we are shipping in NT5 (for example, it won't query for
arbitrary options \& store results), it was obvious how I could write
the additional code to implement this functionality. The full client
consisted of about 2600 lines of code.

One example of esoteric, extended functionality that was clearly
patched in by a third party was a set of routines to that would pad
the DHCP request with host-specific strings required by Cable Modem /
ADSL sites.

A few other steps were required to configure the DHCP client to
auto-start and auto-configure my Ethernet interface on boot but these
were documented in the client code and in the DHCP documentation from
the Hungarian developer.

I'm a poorly skilled UNIX programmer but it was immediately obvious to
me how to incrementally extend the DHCP client code (the
feeling was exhilarating and addictive).

Additionally, due directly to GPL + having the full development
environment in front of me, I was in a position where I could write up
my changes and email them out within a couple of hours (in contrast to
how things like this would get done in NT). Engaging in that process
would have prepared me for a larger, more ambitious Linux project in
the future.\footnote{\htmladdnormallinkfoot{Vinod Vallopillil, Linux OS
Competitive Analysis (Halloween
II).}{http://www.opensource.org/halloween2.html}  Note Vallopillil's
surprise that a program written in California had been subsequently
documented by a programmer in Hungary.}
\end{quotation}

``The feeling was exhilarating and addictive.''  Stop the presses:
Microsoft experimentally verifies Moglen's Metaphorical Corollary to
Faraday's Law.  Wrap the Internet around every brain on the planet and
spin the planet.  Software flows in the wires.  It's an emergent
property of human minds to create.  ``Due directly to the GPL,'' as
Vallopillil rightly pointed out, free software made available to him
an exhilarating increase in his own creativity, of a kind not
achievable in his day job working for the Greatest Programming Company
on Earth.  If only he had emailed that first addictive fix, who knows
where he'd be now?

So, in the end, my dwarvish friends, it's just a human thing.  Rather
like why Figaro sings, why Mozart wrote the music for him to sing
to, and why we all make up new words:  Because we can.  Homo ludens,
meet Homo faber.  The social condition of global interconnection that
we call the Internet makes it possible for all of us to be creative in
new and previously undreamed-of ways.  Unless we allow ``ownership''
to interfere.  Repeat after me, ye dwarves and men: Resist
the resistance!

\section{Their Lordships Die in the Dark?} 

\indent For the IPdroid, fresh off the plane from a week at Bellagio paid for
by Dreamworks SKG, it's enough to cause indigestion.

Unlock the possibilities of human creativity by connecting everyone to
everyone else?  Get the ownership system out of the way so that we can
all add our voices to the choir, even if that means pasting our
singing on top of the Mormon Tabernacle and sending the output to a
friend?  No one sitting slack-jawed in front of a televised mixture of
violence and imminent copulation carefully devised to heighten the
young male eyeball's interest in a beer commercial?  What will become
of civilization?  Or at least of copyrights teachers?

But perhaps this is premature.  I've only been talking about software.
Real software, the old kind, that runs computers.  Not like the
software that runs DVD players, or the kind made by the Grateful Dead.
``Oh yes, the Grateful Dead.  Something strange about them, wasn't
there?  Didn't prohibit recording at their concerts.  Didn't mind if
their fans rather riled the recording industry.  Seem to have done all
right, though, you gotta admit.  Senator Patrick Leahy, isn't he a
former Deadhead?  I wonder if he'll vote to extend corporate
authorship terms to 125 years, so that Disney doesn't lose The Mouse
in 2004.  And those DVD players---they're computers, aren't they?''

In the digital society, it's all connected.  We can't depend for the
long run on distinguishing one bitstream from another in order to
figure out which rules apply.  What happened to software is already
happening to music.  Their recording industry lordships are now
scrambling wildly to retain control over distribution, as both
musicians and listeners realize that the middlepeople are no longer
necessary.  The Great Potemkin Village of 1999, the so-called Secure
Digital Music Initiative, will have collapsed long before the first
Internet President gets inaugurated, for simple technical reasons as
obvious to those who know as the ones that dictated the triumph of free
software.\footnote{See ``They're Playing Our Song: The Day the Music
Industry Died,'' in \textit{The Invisible Barbecue}, forthcoming.} The
anarchist revolution in music is different from the one in software
\textit{tout court}, but here too---as any teenager with an MP3
collection of self-released music from unsigned artists can tell
you---theory has been killed off by the facts.  Whether you are Mick
Jagger, or a great national artist from the third world looking for a
global audience, or a garret-dweller reinventing music, the recording
industry will soon have nothing to offer you that you can't get better
for free.  And music doesn't sound worse when distributed for free,
pay what you want directly to the artist, and don't pay anything if
you don't want to.  Give it to your friends; they might like it.

What happened to music is also happening to news.  The wire services,
as any US law student learns even before taking the near-obligatory
course in Copyright for Droids, have a protectible property interest
in their expression of the news, even if not in the facts the news
reports.\footnote{International News Service v. Associated Press, 248
U.S. 215 (1918).  With regard to the actual terse, purely functional
expressions of breaking news actually at stake in the jostling among
wire services, this was always a distinction only a droid could love.}
So why are they now giving all their output away?  Because in the
world of the net, most news is commodity news.  And the original
advantage of the news gatherers, that they were internally connected
in ways others were not when communications were expensive, is gone.
Now what matters is collecting eyeballs to deliver to advertisers.  It
isn't the wire services that have the advantage in covering Kosovo,
that's for sure.  Much less those paragons of ``intellectual''
property, their television lordships.  They, with their overpaid
pretty people and their massive technical infrastructure, are about
the only organizations in the world that can't afford to be everywhere
all the time.  And then they have to limit themselves to ninety
seconds a story, or the eyeball hunters will go somewhere else.  So
who makes better news, the propertarians or the anarchists?  We shall
soon see.

Oscar Wilde says somewhere that the problem with socialism is that it
takes up too many evenings.  The problems with anarchism as a social
system are also about transaction costs.  But the digital revolution
alters two aspects of political economy that have been otherwise
invariant throughout human history.  All software has zero marginal
cost in the world of the net, while the costs of social coordination
have been so far reduced as to permit the rapid formation and
dissolution of large-scale and highly diverse social groupings
entirely without geographic limitation.\footnote{See ``No Prodigal
Son: The Political Theory of Universal Interconnection,'' in
\textit{The Invisible Barbecue}, forthcoming.}  Such fundamental
change in the material circumstances of life necessarily produces
equally fundamental changes in culture.  Think not?  Tell it to the
Iroquois.  And of course such profound shifts in culture are threats
to existing power relations.  Think not?  Ask the Chinese Communist
Party.  Or wait twenty-five years and see if you can find them for
purposes of making the inquiry.

In this context, the obsolescence of the IPdroid is neither
unforseeable nor tragic.  Indeed it may find itself clanking off into
the desert, still lucidly explaining to an imaginary room the
profitably complicated rules for a world that no longer exists.
But at least it will have familiar company, recognizable from all
those glittering parties in Davos, Hollywood, and Brussels.  Our Media
Lords are now at handigrips with fate, however much they may feel that
the Force is with them.  The rules about bitstreams are
now of dubious utility for maintaining power by co-opting human
creativity.  Seen clearly in the light of day, these Emperors have
even fewer clothes than the models they use to grab our eyeballs.
Unless supported by user-disabling technology, a culture of pervasive
surveillance that permits every reader of every ``property'' to be
logged and charged, and a smokescreen of droid-breath assuring each
and every young person that human creativity would vanish without the
benevolent aristocracy of BillG the Creator, Lord Murdoch of
Everywhere, the Spielmeister and the Lord High Mouse, their reign is
nearly done.  But what's at stake is the control of the scarcest
resource of all: our attention.  Conscripting that makes all the money
in the world in the digital economy, and the current lords of the
earth will fight for it.  Leagued against them are only the
anarchists: nobodies, hippies, hobbyists, lovers, and artists.  
The resulting unequal contest is the great political and legal
issue of our time.  Aristocracy looks hard to beat, but that's how it
looked in 1788 and 1913 too.  It is, as Chou En-Lai said about the
meaning of the French Revolution, too soon to tell.  
\pagebreak
\bibliography{barbecue}
\end{document}