I try to stay away from entries entitled “Dave Winer has gone barking mad,” but from time to time I suspect I just won’t be able to avoid it.
Background: Dave got miffed because Lawrence Lessig’s big speech included an exhortation to get off your butts and do something about the political arena. Dave, to be perfectly fair, is in fact fairly active in a scattershot kind of a way. He also deserves applause for his rejection of patents, although he couldn’t have actually patented everything he thinks he could.
However, one of the things intelligent individuals are expected to do is understand the concept of generalizations. There is a difference between saying “Hm, that was a generalization and doesn’t apply to me” and saying “I’m not like that, so he was lying.”
Dave fumed for a few days and finally found an old statement he made regarding Lessig. It was bullshit then, and it is bullshit now. Code is not process, it’s code. Prose has two levels: process and the words themselves. Software has three: the process, the source, and the code.
It’s true that Lessig’s original argument is somewhat inaccurate, in that you can learn from observing the behavior of a program. “Hey, copy and paste are good.” But Lessig wasn’t even making an analogy; he was citing an example. Dave didn’t really read the article very closely.
The problem is that Lessig is speaking from a broad base of theory and a deep understanding of the copyright system, whereas Dave is speaking from the perspective of someone who’s always assumed he’s simply entitled to the rights he sees as universal. Unfortunately, the copyright system is not based on universal rights. It’s based on a contract between the government and the creator. Copyright assumes no inherent right to intellectual property; copyright provides the creator with a right to the creation in return for the creator’s work. It is not a method of protecting an inherent right. (In the US. Europe is different.)
However, all that was fairly mild compared to the current temper tantrum. Dave’s accused Lessig of cluelessness, and buying into the authority of the laws. Which is truly perplexing, because those are the laws that keep me from copying Dave’s software and giving it to all my friends.
But what I think Dave is missing here is that Lessig accepts the authority of the process… which is part of what civil disobedience is all about. Thoreau got a lot wrong, but he did understand that civil disobedience necessarily includes getting arrested.
Finally, today, Dave pointed out that the world does get something in return for his copyright. But gah! He misses the point again! To the degree that Dave choses not to patent his techniques, yes, the world does get something in return. However, that is a choice Dave has made and the copyright system does not oblige him to make that choice! The copyright system protects Dave, and Dave has chosen to eschew a portion of that protection. Good for Dave — but how does that make Lessig’s comments about the system wrong?