Chapter 24: Cathedrals and Open Source – Bazaars of Rights

Pool Sparkles - is09-46-106Copyleft. Freeware. Open Source. Terms we should know about, or better yet, be prepared to live by.

Property rights, specifically intellectual property (IP) rights (e.g., copyrights, trademarks, and patents), form the basis for the legal sandboxes by which creative endeavors are typically governed. While much in this chapter critiques current methods, I am not advocating anarchy and doing away with all intellectual property rights. Surely no rights are just as undesirable as oppressive rights.

Perhaps the Hawaiian voice-over at the City of Refuge sets the tone best: “The age-old questions are still among us, as they were among our ancestor’s ancestors: How to use the earth wisely; and how to get along with one another.” Property rights squarely intersect these ancient issues of wise resource allocation and getting along.

Many creative people look at their work as if a baby., and this natal instinct to protect one’s child is incredibly strong, and for good reasons (e.g., growth, survival). Wisdoms like “Don’t cast pearls before swines” remind us of the importance to act as diligent shepherds with our creative offspring. Yet, it is easy to forget the Source that gifted us and mistakenly proceed from shepherd to owner.

Ownership begets slavery, and this can swing both ways.

Sometimes that which we think we own holds us as slaves to it (e.g., insurance, liabilities, property taxes, maintenance/upkeep). Consider the old joke about a recreational boat owner’s two happiest days, “the day of purchase and the day of sale.” The care and feeding in-between often hold us hostage.

Years ago, I wrote a piece called “My Hat” which exemplified a tribe’s custom to gift a thing to another who greatly admires it. These indigenous folks felt that to not gift it, would hold them slaves to it. Whereas by gifting it, they showed respect, promoted its beauty, and allowed their spirits to remain free.

We see similar thinking in Mutant Message Down Under, where the author, Dr. Marlo Morgan, tells the tale of Aborigine elders quieting an argument between two children over a toy. To one child they communicated the importance of sharing, cherishing the experience and not being beholden to the item itself. To the other child, the elders communicated the importance of honoring respect, waiting one’s turn, and the abundance available from community harmonics.

“Just say no to attachments” is a basic tenant of many global religions. One look at the pyramids and we are reminded that not everybody gets this point.

Imagine that God calls you over and says, “Come here I want to show you something,” and then proceeds to show you a magic rose garden. “You are the first person with whom I have chosen to share this,” He says and then disappears, leaving you alone to enjoy the garden’s colors, smells and textures.

Now, how many of us are going to try and “own” it. To draw a fence around the garden and keep others out. Sure, He gave us free agency, so, if that’s your choice, then so be it. Just don’t be surprised when you are no longer invited to other heavenly experiences/gifts. And besides, what He gives, He surely can take away, e.g., drought, pestilence, writer’s block.

When others come knocking at the rose garden, I say step to the side and make way. See tourism (one of the world’s largest industries). Respect for environmental and tackiness issues implied, it is much better to sell rose garden tour tickets, photo books, works of art, postcards, food concessions, t-shirts and souvenirs, than to try to own it. This way, we create wealth by blazing added-value paths that bring subsequent garden visitors’ experiences to another level.

With regard to heavenly rose gardens, Einstein had this to say: “In the temple of science are many mansions, and various indeed are they that dwell therein and the motives that have led them thither. Many take to science out of a joyful sense of superior intellectual power; science is their own special sport to which they look for vivid experience and the satisfaction of ambition; many others are to be found in the temple who have offered the products of their brains on this altar for purely utilitarian purposes. Were an angel of the Lord to come and drive all the people belonging to these two categories out of the temple, the assemblage would be seriously depleted, but there would still be some men, of both present and past times, left inside.”

Now my rose garden example did presume a basis of respect for environmental and tackiness issues. Walt Disney, after building his California theme park, was apparently distraught with the tacky profiteers who built up all around his park in order to capitalize on Walt’s efforts. Walt felt that these tacky profiteers cheapened his efforts because they did not adhere to the same quality principles, nor were they committed to providing customers with a total experience. With his next venture, Walt secured enough land in Florida to prevent encroachers from diminishing his second park.

Knock offs, imitations, and copying of all sorts have plagued creators throughout human history. Today, many North American publishing firms cry foul at Asian publishers who purportedly copy their works. Yet, there was a time when English publishers cried foul at the American Colonial printers/publishers. Charles Dickens and many others were denied royalties as the colonials copied and distributed cheap, penny paperbacks for their colonial markets.

How many colonial frontier people were able to learn to read as a result of “illegal” efforts? How many printers and publishers found substance, provided more jobs, developed better techniques and/or equipment, advanced the state of communications and our rights to free speech? Yes, to the British publishers these colonial printers were scoundrels and thieves. Yet on a communal level, these same thieves catered to a market inaccessible to those “official” publishers, e.g., higher retail prices due to increases in distribution costs like ocean travel and/or import duties/taxes. Thus, colonial publishers were able to add value to their own markets with lower price points.

Apparently, one of the world’s most contemporary violators of intellectual property rights is China. On the surface there is much political rooster dancing. Peel back a couple of layers and you hear the Chinese saying, “Hey, don’t tell us we can’t use it. Just because you got to the finish line first doesn’t allow you to block and stymie our community’s needs. After all, we are the ones who have to create the added values to make it work for our people (e.g., translation, distribution). Our responsibility is to our people. If we can adapt something that helps our people, then this is what we must do…”

Balancing cultural needs with artists’/inventors’ rights has been an ancient issue. The Chinese approach to intellectual property rights seems worlds away and far different from property rights as currently advocated in North America, which I would argue are a human tragedy in their current state.

U.S. property rights seem to resonate the greatest with those rooted in greed, stinginess, insecurity, and/or paranoia. Often found hiding behind soulless bureaucracies, these Darwinian life forms continue to advocate tinkering with a system mostly for their own profits while failing to consider the overall culture’s needs.

Why is it the man most responsible for cementing the democratic framework has been ignored in this department? Please … sometimes the obvious is too …

Thomas Jefferson realized that a balance between cultural need and artistic need could be solved by offering the artist limited rights for a period of time. The U.S. Constitution states:

Article 1, Section 8 – “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries… Amendment I – Congress shall make no law … abridging the freedom of speech, or of the press…”

Even the Universal Declaration of Human Rights via the United Nations (1948) places cultural needs above artists’ rights: “Article 27 – 1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.”

Michael Hart’s Project Gutenberg newsletter, March 1997, states: “Copyright in the US was originally proposed by Jefferson to be 14 years – which was extended to 28 years immediately, then 56 years to defeat the first steam and electric powered printing presses of a century ago, and to 75 years to defeat the Xerox machine. Now they are trying for 95 years to defeat text made available via computer networks.”


I’ve heard intellectual property experts argue that patents are the highest form of absolute protection under U.S. law; they are above trademarks which are above copyrights. The U.S. Patent Office, created in 1836, legislated in 1790, offers patent recipients only seventeen (17) years of free reign. This is only three more years than originally proposed by the great frameworker, Thomas Jefferson, son of the Republic, for copyrights! What’s more is that many patent attorneys will confess most patents don’t make money. So why the stranglehold on copyrights – greed hidden behind the soulless!

Call in Joan Rivers, “Can we talk…!”

Apparently, wind surfing patents were held by a California manufacturer, and, as I understand it, part of a patent award is based on no prior examples/works. In this case, the manufacture of wind surfing equipment (a patent holder) was unaware or failed to report on an article in Popular Mechanics/Science, which featured another man’s wind surfing invention which seemed very close in design. The date on the magazine confirmed the evidence of prior-art by the man featured in the article and negated the patent’s full enforcement.

While fascinating on an intellectual/legal level, this was most telling after the incident interviews. A documentary interviewed the original man from the article as to how he felt about the fact that another firm had capitalized on his ideas. Basically, he reported, “Well. They took all the risk. They put the money up to build and sell the units. They worked hard and I’m happy the sport took hold, but I did not bring it to the level that they did…”

And this is the intellectual property spirit behind the father of wind surfing. Bravo!

Consider these words from Dante on the joys of sharing (Purgatorio, XV):

“For the more there are who say ‘Ours,’ – not ‘Mine’ –
by that much is each richer, and the brighter
within that cloister burns the Love Divine.”

Much has been written about Eric S. Raymond’s The Cathedral and Bazaar, a powerful essay that is rumored to have inspired Netscape to go public with their source code after reading it – Eric makes a compelling case as to how Open Source software is not only superior to commercial versions, but also shows how it will be the ultimate survivor in a competitive, global marketplace. Hot Dog!

When I first started building Web sites, one of the most frustrating things experienced was the arcane practices of the software industry via licensing. I will not elaborate on the utter insanity associated with software pricing per developer seats, central processing units, users and/or sundry other techniques.

All software, from applications to operating systems, are tools. Doctors buy scalpels and carpenters buy hammers and, in most cases, neither pay royalties on the income they derive from working with these scalpels and hammers. So why is it that so many commercial software companies feel the need to price their tools contingent upon how much we earn using their tools. The only good I can see from these medieval pricing practices is that they are fueling the Open Source movement.

Consider Web servers, the computers that act as butlers and serve Web pages requested by user’s browsers. Serious Websmiths in the know universally use operating systems like Linux and run server software like Apache or BSD for platforms in creating robust sites. However, these programs are Open Source (e.g., free to use, free to modify, free to redistribute) and as such do not have traditional corporate marketing budgets behind them.

Certainly, most have heard about Web servers running on proprietary software promoted by a Seattle firm, which “has no class,” per Steve Jobs, Apple founder. The reasons why we don’t read more about Open Source products is due partly to the lack of trade press incentives and fear-based buying – e.g., in the 1960’s, the saying was “Nobody ever got fired for buying IBM,” and this same fear-based thinking applies to this Seattle firm. Also, big companies buy big ads, have big marketing campaigns, offer big press conferences, and more, all of which promotes an incestuous information or misinformation system. This is not a complaint as much as it is a recognition of market realities.

And yet Open Source movement is growing at a wild rate. Almost every major computer company is now “bundling” (including) versions of these Open Source (free) operating systems with their hardware and/or software integration services. Many have stepped up to the plate to offer consulting and educational support services for these free tools.

The winning trends are clear. Consider these words from the Free Software Foundation: “When programmers on the Internet can read, redistribute, and modify the source for a piece of software, it evolves. People improve it, people adapt it, people fix bugs. And this can happen at a speed that, if one is used to the slow pace of conventional software development, seems astonishing.”

On the personal front, I once pursued a patent for Dynamic Array Link Sponsorships (DALS). I always thought it would be cool to have a patent under my belt, and many people who saw this DALS system thought I might be onto something.

My then current intellectual property attorney was so excited with DALS that he offered to barter his firm’s fees for a position in the patent. This seemed agreeable until we got into the mechanics. While traveling down the patent application writing process, I began to role-play various scenarios of market approach. His limited vision became apparent with gross and unearned self-proclaimed marketing expertise. His distance from market realities and unwillingness to learn were unbearable. In the end, I paid him for all of his time in order to release him of any claims.

It was also around this time that I became increasingly aware of ideas like Copyleft, Freeware and Open Source. While perhaps strange sounding at first and seemingly less than perfect for implementation, in my heart I knew these principles were the right ideas. Accordingly, I committed to a public relations campaign with the local press so that DALS went on public record, thereby prohibiting future patent/trademark claims.

The folks that brought us are pretty much in my backyard. They have gained press and attention with their patents for Internet business processes, like name your own price for airline tickets. Yes, this is an innovative site, and I applaud them for their efforts. However, at a pre-IPO (initial public offering) presentation, a man in the audience stood up and said, “What’s the big deal. I call my stockbroker and tell him, ‘When IBM hits 125, buy 100 shares.’ This name-your-own-price thing is nothing new, so why do you deserve a patent for this which would block out everybody else. Are you prepared to sue financial firms for violating your patent?” The presenter stumbled through an incomplete answer.

Greed is all around us, trying to lock in the magic rose gardens bequeathed to our care.

Yet there are a few wonderful examples to the contrary. The Grateful Dead and the Dave Matthews Band come to mind.

I have never been a huge musical fan of the Dead. However, a friend of mine, who in younger days witnessed over 130 of their shows, insisted that he and I attend one of their concerts in New York. During the concert, he turned to me and said, “Do you realize that every time Jerry Garcia does one of these guitar licks he is doing so impromptu.” This was a paradigm shift for me. To be able to spontaneously venture into new musical territories gave me a totally different respect for the Dead, their audience, and the whole Grateful experience. It was at this point that the idea of allowing people to freely tape their concerts started to make sense.

In 1999, The Dave Matthews Band concert sold out 60,000 seats at New York’s Giant Stadium in an hour and a half. During an interview with Charlie Rose, Dave Matthews talked about his band’s rise in popularity and attributed their success partly to following The Grateful Dead’s formula of allowing free concert tapings.

Dave shared a funny story about how they started out around ’93-’94 playing local venues in Virginia. Apparently they couldn’t afford to tape their own shows and had no album released. Yet one night they showed up to play at this tiny college in Maine, and they were amazed that everyone in the audience was singing the words to their tunes. Obviously the tapes traveled (e.g., students home on summer break trading with friends).

In the end, perhaps Einstein is right. Few noble pursuers will be left when heavenly winds sweep the halls. One thing is for sure, the ones standing will ROCK!

Ultimately, Open Source is not about nobility as much is it is about the perfection inherent with flat hierarchies. There is a lot of profit room for those selling support, consulting, and training materials and sundry other aids – that’s really where the money is at.


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