Dave Winer Defends Bill Gates, Sort Of

Dave Winer asks some questions in the wake of my posting about Bill Gates' recent interview, in which Gates called people who want balance in intellectual property laws "communists." (Dave calls them "neo-communists who want musicians to give their work away," so if I understand him correctly he agrees with Gates on this, even though that language largely misrepresents the beliefs of people who are trying to restore copyright fairness.)

(UPDATE: Dave strongly disagrees with my interpretation of how he characterized Gates' statement; see comments below.)

As Dave points out, Gates is busy trying to persuade Hollywood that Microsoft is the best friend of the entertainment industry. Indeed, Microsoft's DRM moves are in large part designed to assist copyright holders in locking down everything that moves. Of course, Hollywood would restrict the development of new technology that could be used for infringing purposes, even when it has totally legitimate uses; someday this could bite Microsoft, too.

Dave is also correct that Steve Jobs has been doing some of the same things, though Apple has at least attempted to find some balance for the users, as opposed to totally bending over for the cartel.

Contrary to Dave's assertion, however, Jobs isn't getting a free ride on this, at least not from me. I've gone after Apple on many occasions for its own tendencies toward control-freakery, most recently this posting the other day. And in my book I said this:

"Even Apple has jumped aboard the DRM train, though not with the same zeal Microsoft has shown. Apple’s iTunes Music Store, which sells songs, encodes them in a format that can’t easily be converted to the wide-open MP3 or OGG formats. The DRM scheme, instituted because the music industry demanded it, gives Apple users more freedom to copy songs among different devices than we saw in prior DRM schemes. But it tends to penalize some of Apple’s best customers -- people who repeatedly buy new Macs. An iTunes Music Store customer can listen to the songs on five computers, but managing authorizations can be a hassle. It’s also important to remember that what freedoms Apple gives today can disappear tomorrow."

(In an end-note, I described how Apple had subsequently changed the iPod's' functions in a way that both added and subtracted user freedoms.)

Dave also asks if I'd criticize the people with whom I now have business relationships. If I felt sufficiently strongly about something, I would -- though at least on the question at issue here we share pretty much congruent views (Mitch Kapor, the Omidyar Network and Tim O'Reilly all support the goals of Creative Commmons, for example). But, as was the case when I wrote about Knight-Ridder while employed by that company, anything I say about these folks or enterprises would need to be taken by a reader with a grain of salt, because of the business relationships. This is always true when a journalist covers a person or organization with which he or his employer has such a relationship, and it always will be. Transparency is a useful thing, but readers also need to be cautious.

Comments

[Dave Winer]

Dan, I do not agree with Gates, or support his position. I do think I understand why he said what he said, and why he said it the way he did. I think you do go a lot easier on Apple and Jobs, I've been reading you for many years, and you rarely have a generous word for Microsoft, and usually spin positive for Apple. But Apple has been the leader in bending over for the media industry, and Microsoft the laggard.

It really hurts that you think I agree with Gates's position. I have been a leader in supporting the Creative Commons, authoring the RSS module for the CC, and fostering the use of "podsafe" music in the new art of podcasting. I recently released Frontier, a work of over 16 years, as open source under the GPL, and licensed all the docs under the CC. How could you possibly think I was against artists granting liberal rights of use of their content.

I think I made my point reasonably clearly, there are certain people and companies who are okay to target and others who are not. I have found Microsoft very willing to take criticism to heart, and not punish critics. I have seen the oppositve of Apple. No surprise that Microsoft gets more heat than Apple, it's safer to condemn them, since there usually is no retribution. I asked my readers to consider that perhaps others who are immune to crticisim might be intimidating potential critics.

Even in this rebuttal you paraphrase my comments to show Microsoft in the worst possible light. Come on Dan, let's go for balance. In this case Apple is at least equally nefarious as Microsoft, Actually they set the basis for competition, if it weren't for their aggressive pursuit of the entertainment industry's goals, Microsoft might well be representing users' interests better.

[Dan Sickles]

"Gates is busy trying to persuade Hollywood that Microsoft is the best friend of the entertainment industry"

Notice who Microsoft's real customer is. The Entertainment Industry is just a lever to extend the monopoly. "Security" is another. Without these two, Microsoft will have trouble persuading their software licensees (customers?) to upgrade to Longhorn.

Ballmer is even more scary:
http://www.theregister.co.uk/2004/10/07/ballmer_doesnt_get_it/

'Talk to practically any Microsoft executive and you'll find that they really do believe that all content that doesn't go onto a player or a computer via an 'approved' sales channel with 'real' DRM is stolen.'

[Dave Winer]

Dan Sickles, right on.

A friend of mine, not from the computer industry, an iPod and iTunes user, lost all her music, she has no idea how.

Try plugging an iPod into a different laptop. Do it often enough and you start losing your music.

Is this piracy? I think under any reasonable definition of the term, it is.

[adamsj]

Dave, when you say:

I do not agree with Gates, or support his position. I do think I understand why he said what he said, and why he said it the way he did.

it immediately raises this question for me: Could you explain why Bill Gates used the word "communist" in the passge quoted?

(I once made the mistake of saying that I knew exactly what Bob Dylan meant when he said "To live outside the law you must be honest" at a local Perl Mongers dinner. Randal Schwartz was our guest, and he immediately asked me to go ahead and explain it. I still think I know what Bob Dylan meant by that, but I turned out not to be so great at explaining it to others.)

[Dave Winer]

Adams, of course I can't explain it, I'm not Bill Gates, and I can't read minds. I can only guess, and my guess is probably wrong.

[/pd]

ACtually, when one looks at this, Apple is not getting into the spotlight ?? ..take the trend of apple...
1) Itunes users sues Apple
2) Apple sues thinksmart
3) Apple & employees do not blog under the corporation
4) Apple users now face virus issues.. it never was an issue before.
5) Dave, mentioned Apple s/w and Ipod issues.

How long will it take , for the 5% of apples user figure out, that they have been compartmentalized based on thier own brand equity loyalty ?? Will they accept it ??

The real issue here is IBM brand name is sold into China and if the OEM decideds to put on a lunix type Desk top OS then MSFT has issues. Big Issues !! Imagine walmart offering a PC for just about $150-250/- eh ?? What will be the runaway sales and its impact to Market leverage ??

[adamsj]

Dave, I don't expect you to know what's in Bill Gates' head, but I do think if you say you understand why he does something, you ought to be able to verbalize that understanding. Here's what you said:

I do think I understand why he said what he said, and why he said it the way he did.

So, knowing it's your understanding and not The Truth, why do you think Gates choose the language he did? In particular, why did he call people with whom he disagrees "communists"?

[Jeff Harrell]

There seems to be an elephant in the room here.

Advocates of the "open source" movement, principally a fellow named Stallman and his disciples, do share an important philosophical point with the late, unlamented communists: the abolition of private property rights.

For the communists, it was about the right to own the means of production. (And since everything from a horse to a tractor factory was a means of production, the net they cast was pretty wide.)

For the "open source" advocates, it's about intellectual property: computer source code, recordings of music, television shows and movies, written works and the like.

In fact, Stallman has written lengthy documents which he describes — I'm not kidding here — as "manifestos" in which he argues that we should abolish all property rights related to these types of objects.

So to that extent, the hard-core "open source" advocates are, in fact, awfully reminiscent of the communists of the bad old days.

In the rush to damn Bill Gates for using emotionally charged language, many people seem to have missed the fact that the guy has a point here. If you want to waive all rights over your work and contribute it to the public domain, that's just great. The problem arises when you try to tell others that they must do the same thing. That's when the line between being charitable and being sinister gets a little bit fuzzy. As much as I'm not a fan of Bill Gates, I think he was on solid ground when he pointed this out.

[adamsj]

Hi, Jeff,

There's a big difference between the philosophies behind "free software" (with which Richard Stallman is aligned) and "open source" (which Richard Stallman would tell you isn't at all what he's talking about).

There is a definite political left-wing tilt to "free software", but calling it "communist" is a rather sloppy use of language. If "open source" has a political orientation (which I'm not at all sure it does), it's soft-hearted libertarian. While the two movements share a lot in practice, they don't share everything, and that's because the ideas behind them are very, very different.

So when Bill Gates uses language which is both emotionally charged and (more to the point) inaccurate, I assume he's hiding the emptiness of his argument. Ask yourself: Do you do the same when you try to fob of Richard Stallman's "free software" arguments as those behind "open source"?

[step back]

Dan,
Both sides of the aisle are resorting to extreme rhetoric and name calling.

Bill Gates is calling those who oppose him commies. Stallman and gang are calling the Gates's of the world, ruthless monopolisits.

If truth be known, the ruthless monopolists are winning because they can afford to buy-off Congress.

On Dec. 8, 2004 President Bush signed into law a new fee structure which makes it more expensive for the little guy to get a patent. There was a time past when the US government subsidized the patent system. Now only the very rich can afford it.

Similar things have been happening on the copyright side. Disney and friends gets to keep Mickey even though the original deal was for Mickey to become part of the commons (public domain) in X years (forgot how many, 50, 75?)

We have the best democracy money and power can buy

[Dave Winer]

Adams, didn't you read what I wrote on Scripting News? It's a good site you should check it out.

[Jeff Harrell]

To the individual who signs his posts with the name "adamsj," I'm sure the minute factional differences between this splinter group and that splinter group seem like a big deal to people who live close to one subgroup or another. But from way back here, they all blur together. Bottom line: They are anti-profit motive and anti-property rights. That's why I say that Gates' comparison, if clumsy, was fundamentally sound.

Is this an accurate reflection of the position of the advocates, or just a PR failure? I have no idea, and frankly I don't really care that much. Either the anti-capitalist faction will continue to languish in relative obscurity, or it will finally be drowned out by more reasonable voices. The net result, to people like myself, will be the same.

I find the case of Apple very interesting in all this. Here we have a company that makes selected pieces of its intellectual property available but only on strictly non-political terms, and that builds new products on the shared IP of others, but only accepting IP from those who are similarly apolitical. As a result, they're dominating the marketplace of ideas and growing like gangbusters. I don't know whether this conclusion is sound or not, but it sure seems to me like apolitical collaborating is beating the pants off of the anti-property agenda in the market.

Sure, it's just a perception, and I'm sure that there's somebody out there who could argue that I'm wrong six ways from Sunday. But in my opinion it's perception, not reality, that's the topic of discussion here.

[Karl]

Jeff, that's a PR failure.

Many open source advocates are proponents of earning profits. The list of companies leveraging open source software in new and interesting ways to earn a profit grows day by day.

If I can suggest a book it would be "Open Sources: Voices from the Open Source Revolution". It's online and can be found here:

http://www.oreilly.com/catalog/opensources/book/toc.html

I think you will find a wide range of ideas, many of which are focused on how to earn a profit.

You're right that perception is reality - so the question is for me - how do open source advocates eliminate these generalized falsehoods laid against them. How do they overcome the image they have established with folks like yourself? Sure there are radicals amoungst them, as there are in so many other things. But it's important that they don't drown out the rest to people like yourself.

I'd argue that the net result of all this, for people like you (and me) does matter - more choice vs. more lock-in. Peception can lead us down roads we don't think we're traveling down.

[paul]

Dan, when will your book become an ebook and a FREE download?

[Dan Gillmor]

Paul, it has been available on the Web, fully and freely downloadable under a Creative Commons license, from the day it reached the stores:

http://www.oreilly.com/catalog/wemedia/book/index.csp

[Mike Torres]

"Dave is also correct that Steve Jobs has been doing some of the same things, though Apple has at least attempted to find some balance for the users, as opposed to totally bending over for the cartel."

I am not so sure this is a fair statement. AAC/Fairplay as a format has far more limited rights management than Windows Media DRM, which supports a variety of scenarios. Services like Napster and MSN Music employ WM DRM differently. WM is a platform - it doesn't have implicit rights management built-in.

Check out the different scenarios:
http://www.microsoft.com/windows/windowsmedia/drm/scenarios.aspx

Direct & indirect license acquisition, subscription services, purchase & download, rental services, video-on-demand, pay-per-view, live DRM, "one file, different licenses", NO DRM, and so on.

Windows Media gives the content creator and/or distributor the flexibility to choose the scheme which works best for each piece of content - it is on the onus of the distributor to work with the creator to ensure the right "balance for the users" - and far more often than not, the distributor is *not* Microsoft.

This lets the market (us) decide which scheme works best by supporting the provider(s) that employ it instead of being force-fed a "purchase, authorize, don't copy" scheme from a single provider (Apple).

(Disclaimer: this is my personal opinion, and does not necessarily represent the views of my employer)

[Dan Gillmor]

Windows Media gives the copyright holder the absolute right to determine whether fair use will even exist. The copyright cartel maintains that there is no right to fair use other than the right to hire a lawyer.

This is not my idea of balance.

[Steve]

Slightly off topic? Maybe not.
Just a word from a "content producer". Yip. Remember us.

As a person who spent a lifetime learning to master instruments, appreciate music, art, and to become adept at all the principles of creating a living and livelihood with music. I feel disappointed and let down somewhat that the "art" has become nothing more then "raw fuel" to run the engine of the Digital Internet Industry. Be it music, words, photos what have you. Technology is fantastic and I am glad and directly benefited from the 90's tech boom but something has gone wrong here when the technology-machine itself becomes more important then the deeper appreciation and knowledge available to be "mined" from all this content available to the average end user these days. This is where it stands right now. Just last week as it was curtain call for CES I saw this for example.

Bill Gates believes millions of
consumers worldwide would live better if a sea of music, movies, video games and television shows were piped into their earphones, laptops, cell phones, cars and living rooms. [1-5-05]

Let's see - more "music" (what, hip-hop?), more bad movies, and more TV (beyond "bad"). All beta wave stuff. Note that "reading" was not included on the list. Of course while all the valuable artists are ignored. In fact. How much downloadable "content" does a person need in this world. If they gain nothing from it other then filling up a hard drive? This, is still the big question.

Why do seemingly average everyday people STILL to this day say "hey dude, I'm not going to pay one cent for that music so bite off and get out of my face". Then, walk down the street whistling and dancing to the same tune he was talking about on his player. Go Figure.

Anyway, I thought I would put my view in because of course the artist is always shoved to the rear of the bus these days while everyone else in the Corporate Suites duke it out to see who's going to be the next "CEO Rock Star". Or the next Big Time Tech CEO to march out and watch his own latest and greatest products crash to the guffaws of the entire audience and still not get it. ["I'm to damn leveraged! It's not my fault! Heehee." Add that one to the one liners Bill for future reference.]

In the meantime, the creators of the content sit around thinking . . "well, uh, jeepers, I wonder if anyone will ever ask us our opinion?"

The true test of any faulty dogma is the exclusion of one thing for the other. And tech is no exception. Thankfully there are people working hard to humanize this thing a little bit. But the battle is far from over obviously.

Anyway I thought I would through in my Ten Bucks. Thanks for listening.

[Jeff Harrell]

You know, Karl, I love lock-in. I'm absolutely crazy-go-nuts about lock-in.

The textbook example of platform lock-in is the Mac. Know what? The Mac is, far and away, both the most technically advanced desktop computing platform in the world and the one that provides the best user experience. Whether your goal is just to manage your music, photos and home movies or to write software applications, the Mac is the platform of choice, hands down. (Gosh, I sound like I should be in marketing. Sorry 'bout that.)

That, to me, says that platform lock-in works. While the rest of the industry stagnated — the old joke goes that Windows 95 was Macintosh '84, and the new one is that Linux '05 is Windows 95 — Apple, along with NeXT, pushed the state of the art both in the user experience and the developer experience.

If all the choices are equally bad, more choice alone is not virtuous.

I want better products and tools, not a bigger selection of shabby ones.

(And with that, the topic has officially gone bye-bye. Sorry for that, but I just felt like weighing in on the whole "choice" myth.)

[Seaan]

Jeff,

As someone who has been involved in the copyright reform (reform, not elimination) movement for many years, less than 1% of the people I've met and corresponded with would come close to your distorted view. My point is that this is not "minute factional differences", but rather attributing to an extremely wide faction the views of a very small minority.

I don't know if I agree with your exact reason as to Apple's success, seems like there is a much simpler reason. DRM (etc.) is widely disliked, and a knowledgeable consumer base has repeatedly shown they will reject it (DAT, MiniDisc, DIVX, and SDMA for examples). The consumer industry has learned that keeping DRM secret (like the VCR copy protection mandated by DMCA), or secretly adding it to products that otherwise have valuable feature (DVD, iPod) is about the only way to have a successful product.

I personally became a copyright reformist when the DHRA crippled DAT, and the government mandated products that assumed I never produced any audio myself. To this day audio recording is crippled by that bought-and-paid-for law (for example iPod crippling audio recording)! The biggest difference now days is that people sneak DRM into products, or have products so flexible that they can change the DRM after purchase. Between the stealth and the government mandates, the market feedback against DRM is less immediate (what can a customer do if an unacceptable change occurs to the iPod, except to abandon their investment in the product and media). That does not mean that consumers accept DRM, or that it won’t hurt things the industry in the long run. It just means market feedback is slow, and a lot of consumers get hurt and mad meanwhile.

Steve,

I agree that the actual artist is pretty much ignored, it is pretty much the large corporations who get the laws written. Ironically I have noticed small artists supporting laws that are going to hurt them in the long run (actually even large media companies are going to be hurt in the long run, but they don't care). This mostly seems to be ignorance (the small artists don't realize all the implications), or the thought that something (anything!) should be done.

[adamsj]

Hi, Dave,

Yes, I read what you wrote on Scripting News, but it doesn't answer the question I keep asking here about something you said here. If you ever feel like addressing it, I'd love to hear the answer.

Hi, Jeff,

When you use the phrase "the minute factional differences between this splinter group and that splinter group" you point up the PR success of the 'free software' people.

I'm convinced there are only a relatively small number of people who go for the full-out 'free software' argument, which is (among other things) a political argument, as compared to the relatively large number of people who support 'open source' and other, essentially apolitical, policies. The bottom line is that 'open source' doesn't really do PR and 'free software' does. It doesn't hurt any that companies such as Microsoft, which most certainly do PR, confuse the two, just as you do.

There are other criticisms I'd make of your argument, but let's stick with this one for the time being.

P.S. The "individual who signs his posts with the name 'adamsj' " is an actual human being named John Adams. My first UNIX logon was adamsj, and I'm sentimental about it, so I sign myself with it; nevertheless, I do exist in meatspace.

[irishhead]

Check out the video of the dotcommunist manifesto as delivered by Mr. Moglen of the Free Software Foundation. He looks like a Bolshevik and his argument is lucid and incredibly powerful. And yes it is a communist argument. Gates used the word 'communist' because it pushes moral panic buttons with the US public. Free software and the burgeoning idea of copyleft is the enemy of Microsoft. Calling them 'terrorists' would have been just a little too extreme even though it might get to that eventually. Laws aimed at 'terrorism' passed in Europe in the immediate aftermath of 911 redefined terrorists as those who attempt to fundamentally alter the economic and institutional organisation of societies.

Someone mentioned Bob Dylan upthread. If the absolutely hundreds of folk and blues musicians who Bob Dylan drew heavily on throughout his career had used and enforced the strong copyright now used routinely in the corporate music industry - Bob Dylan would not exist. He stole pretty shamelessly and directly from absolutely everybody and everything he saw/read/heard when he was a teen and a twentysomething.

Strong copyright is by definition anti-creativity.

[Stephen Downes]

In matters such as this I take the position of someone who wants to give content away for free. Why would I want to do this? Well it varies from person to person, but in my case I find giving content away has increased my employability while at the same time helps in the objective of making education accessible to all. But why I want to give content away isn't really relevant; what's important here is this is a story about me and my content, and not about me wanting to take or otherwise use someone else's content or product.

Now it so happens that I've been giving my content and product away for as long as I can remember, and my work has (we'll assume by hypothesis) been widely popular and used by many agencies, public and private. Now I have no problem with this, but what I have seen happen is that when a commercial enterprise uses my work, it claims to own that work, and turns around and prohibits me from using it or sharing it any more. Writing and software is incorporated into their products and copyrighted, algorithms and ideas are patented, words and phrases are trademarked.

What has happened, from my perspective, is that the product of my work has been, since I made it publicly available, stolen. Not 'stolen' in the sense of copied or shared, but 'stolen' in the sense that they have it and I can't use it any more. Neither can anyone else. What I want is a mechanism to protect my right to give my content and product away. And that mechanism is (for software) open source (OSS) and (for content) Creative Commons (CC).

Remember, this isn't about your work or your product. You can do whatever you want with it. This is strictly about my work. And what OSS and CC do for me is that they protect my rights by saying that, if you use my work, you cannot thereby make it your own, not even by adding some (usually trivial) improvement on it. If you want to create and own the same sort of thing I created, you have to start from scratch.

If that were it, that would be enough. But there is a second part to this story.

The objective of sharing my content and product is to allow other people to use it. And in order to use it, they have to be able to find it and display it. This is, of course, the historical problem of the pamphleteer; it is not enough to write and primt the pamphlet, it must also be distributed. In the age of print I could simply put the pamphlet into people's hand, I could drop copies in the local grocery store, I could tack copies to the community bulletin board.

Today, it is even simpler. I can simply post my content on a website. I can create audio files and share them via podcasting. I can create a blog and post my RSS feed to Technorati. To day's computers, web browsers, MP3 players and the like don't care where my content came from. They take it in, and they play it.

This is all changing. It began changing with closed hardware devices such as mobile phones. It continued changing with products such as iPod. These devices don't play just any content, they play DRM protected content. And they don't play it from just anywhere, they play only content obtained from authorized repositories. Yes, I know this isn't strictly true; after all, podcasting couldn't exist without independent content. But this is the direction in which we are heading, as both Apple and Microsoft make moves to close off sources of independent content.

How can they do this? Well, they've been at it for a while and they've mastered a variety of techniques. Proprietary data formats. Undocumented APIs. Licensing and royalty costs. OEM lock-in. Bundling. Flooding the market. And, increasingly, digital rights management. They point of any of these tactics is not that they prevent the creation and distribution of free content. It is that they raise the bar so high that only the already wealthy can make content available, so that only those who are willing to sell their content can make a go of it at all. This allows the developers of such systems to sell content which would otherwise be widely available and free.

The opposite of what Microsoft and Apple are doing isn't communism. Microsoft and Apple are monopolists (or at least, wannabe monopolists). Their goal is to eliminate the competition by manipulating the marketplace. Open source and Creative Commons are the opposite. They open the marketplace. They preserve ownership to prevent corporate piracy of shared spaces (ie., shared software, shared content, shared formats). And they preserve the right of anyone to vend or distribute their content and product (on whatever terms they wish) through that space.

Bill Gates has to call open source and Creative Commons 'communist' because he has to demonize it. He has to demonize it because a free market or content and product breaks Microsoft's lock-in. If Gates came out and said, "Well, open source represents the preservation of private property and of open marketplaces," people would wonder why Microsoft campaigns so hard against it. But it it's 'communism' then it's something everybody can understand as evil.

From my perspective - open source and Creative Commons are my only hope against a complete sell-out. Without these to protect my work, the only way I could contribute would be the old-fashioned way, by surrendering all my rights to my work (the way recording artists do, commercial software developers do, academic journal authors do) in order to allow it to be sold in the closed and proprietary marketplace. And this limits not merely my access, it limits what I can say, how I can say it, and who I can say it to.

Because, in the end, as Stallman and others have often said, open source is most of all about freedom. And this is - trust me - something you feel most acutely when you have something unpopular to say.

[Stephen Downes]

P.S. More on this theme:

'Copyright, Ethics and Theft' -
http://www.downes.ca/cgi-bin/website/view.cgi?dbs=Article&key=1041806822

Reusable Media, Social Software and Openness in Education
http://www.downes.ca/files/utah.mp3 (67 megabytes - sorry, I'll make a shorter version available sometime soon)

[Karl]

Sorry Dan to help the thread stray off track, but I gotta answer this one...

I don't think the Mac defines lock-in anymore. Not since the advent of OS-X. No way. Maybe that used to be the case, but not anymore. I think the Mac has life again because of its embrace of Unix. Not despite of it.

ANYWAY... I just hate "my OS is better than your OS" stuff :) It's tiring. Tools are tools and I want the freedom to make the best choices I can.

I'd hate to see one platform vendor - Apple or Microsoft, restrict our choices anymore than I want Ford, GM or Toyota to do the same.

Back to the subject at hand though... wanting balance in intellectual property law doesn't make me communist. I'm almost insulted by the connotation. Too little protection and you lose the motivation to innovate. Too much and you restrict progress. I think it's *capitalist* to want some kind of sane balance.