Re: [NTLK] FW: Fwd: Hacked WiFi driver

Quoting Winston MacKelvie <winstonworks@sympatico.ca>:

> Two points:
> Here in Canada one must 'work' a patent or else someone can legally
> demand a license to it which our gov't will oversee.
> One purpose of patents is to stimulate improvements to the invention
> thus forever making everything better.
> I vote for the rewrite, especially if the driver is based on open-
> source.

True, and this illustrates in a small way how the concept of
"ownership", even in capitalist systems, is a complex and nuanced one.
  Even things as tangible as real estate are subject to all kinds of
potential limitations on the owner's right to do as he or she pleases
- e.g., easements, rights-of-way, zoning laws, nuisance laws,
expropriation (what our U.S. friends call "eminent domain" I believe),
etc.

With intellectual property, it's even more complex and nuanced. As
has been said, patents and trademarks are, in most jurisdictions,
subject to various types of "use it or lose it" rules. Copyrights
expire after certain time periods (although legislators keep extending
these periods due to heavy lobbying by the entertainment industry).

In some areas of intellectual property there are "compulsory
licensing" schemes, whereby creators do *not* have the right to
prevent other people from using their creations, even for commercial
gain; however the users must of course pay licensing fees. A creator
is not free to prevent this by refusing to accept the fee. I'm not
saying this type of scheme applies to software (I don't know), but I'm
just pointing out that "ownership" doesn't automatically mean you have
the absolute right to keep your creation away from other people, as
some have suggested.

The idea in intellectual property law is to strike a balance that
adequately protects and rewards creativity without locking things up
so tightly that it actually stifles or hampers future creativity.
Lawrence Lessig (brilliant U.S. law professor and one of the inventors
of the Creative Commons license) has written very eloquently on this
issue. (I recommend his book Free Culture, which is freely
downloadable and, IIRC, available somewhere in Newtonbook format.) He
argues persuasively that current intellectual property law in the U.S.
is losing that balance (i.e., bending over backwards to maximize
profits for the big content corporations) and he explains how that
will actually end up stifling creativity and innovation.

Although I don't know much about intellectual property law, IAAL, and
I'll bet even U.S. lawyers can confirm that one of the first things
you learn in Property Law class is that property "ownership" is
actually a very mutable "bundle of rights", not the simple,
indivisible concept that it is sometimes thought to be. Exactly
what's in the bundle depends a lot on the circumstances and the type
of property involved.

So my real point -- and I do have one :) -- is that this is an
interesting debate which cannot be settled simply by saying that
Hiroshi "owns" the driver. Ownership is not that simple.

In fact, if it is true, as some have said, that he based his driver on
open-source code, then he might not even "own" it in the sense of
having the right to exploit it commercially.

Legalities, and "private property" vs. "theft" rhetoric aside, if I
didn't have a registered copy, I would see no moral problem in using
the hack knowing that all reasonable efforts have been made to pay for
it. Doing so would not deprive anyone of anything, or reduce the
incentives for anyone else to be creative or inventive. If Hiroshi
found out (in fact, why not just tell him?) and threatened to sue, his
damages would be precisely the amount that he would have received had
he accepted payment in the first place. But everyone who would use
the hack has already said they *want* to pay for it! So that would be
one lawsuit that would be pretty quick to settle. Therefore, there
may not be much of a moral, legal, or practical problem.

Michael

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