The law is an ass

Eric Raymond
11 July 2002

Solana Larsen: Do you think technology is replacing legal copyright restrictions?

Eric Raymond: Indeed, what we are seeing is more and more an attempt to use various security and rights management technologies to extend or replace things that were previously legal protections. Increasingly, instead of relying on courts to prevent you from getting at proprietary content, entertainment and software companies are putting things under technological lock and key, and only using the courts as a backstop.

In general, this is positive. When you take things out of the hands of the law, people usually benefit. Who was the famous English lawyer that pointed out that the law tends to be an arse? This is nowhere more true than in fast moving areas like software and even entertainment technology.

But I am not a fan of the Digital Millennium Copyright Act (DMCA). I think if entertainment companies want to protect their content, they shouldn’t rely on the courts to backstop them. They shouldn’t be using coercive power. Instead they actually ought to come up with technology that is really good and really sound, and accomplishes what they want. Apparently however, they’re incapable of doing that.

SL: Why?

ER: Because some of the problems they want to solve are impossible. Ultimately digital rights management doesn’t work if people have access to general-purpose computers. The thing is; whatever software security measures you create, if people have access to general-purpose computers, they can emulate an environment that looks to the software as though they’re authorised to do whatever they want.

SL: Is that fair?

ER: Well that depends. I would say that if you were talking about making personal copies onto different mediums for backup purposes that’s definitely fair.

There’s a sort of market equilibrium in these things. If content creators don’t cede the reader enough rights, then readers will stop buying their product, or seek ways to circumvent the protections that have been put in place. On the other hand, if proprietors don’t have enough rights so that they get rewarded for generating content, then content doesn’t get generated. So there’s a market balance in these things. As there is in most other things.

SL: Is this different for software?

One thing that is unusual about software relative to other kinds of intellectual property is that there are fairly high and stringent requirements for continual intellectual input into the product. Software needs bug fixes. It needs service. There’s a sort of natural after-market. Because that’s the case, Open Source software is economically viable.

As I’ve pointed out in some of my papers the software industry really has the economic structure of a service industry rather than a product industry. Most other kinds of intellectual property don’t have that kind of natural after-market. They reach a final form, which is essentially static, and therefore I’m not sure that an equivalent of Open Source is viable elsewhere. Certainly, I don’t see any obvious way in which it’s viable for music or literary works.

SL: How is your work different from that of Richard Stallman?

ER: For him, what he calls Free Software is very much a moral crusade. It almost has the character of a religion. He’s passionately involved in all kinds of arguments about the nature and appropriate scope of intellectual property. I care much less about that. To me, Open Source is not particularly a moral or a legal issue. It’s an engineering issue. I advocate Open Source, because very pragmatically, I think it leads to better engineering results and better economic results. I want programmers to be able to do good work within the system, instead of being constantly frustrated. I want consumers to get software that’s reliable and stable, and feature-full and transparent for their inspection. That’s a goal of a somewhat different order than Richard’s. And yes, we argue about it sometimes…

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