On Linux, Software Patents, Shakespeare & the Web

My first love wasn’t poetry but computers. My first substantial work was not a poem, fable or story, but a piece of software written on the Apple IIe. Presently, my primary OS is Ubuntu and I keep partitions free just so I can ‘distro hop’. The term, if you’re not familiar with it, means trying out one distrobution of Linux or BSD (or any operating system) only to remove it as soon as you’ve got it working. Every so often, I use Windows. Windows is like a dependable pony. For the most part, you can trust Windows to keep a steady pace, but that gets dull after a while. I yearn for the unpredictable stallion, the temperamental, wild and maybe ungrateful horse that would just as soon kick you out of the barn; but that’s the horse that runs like lightning.

The beauty of Linux, if you’re not familiar with it, is the vast and varied community developing both the operating system and the software that runs on it. There are hundreds, perhaps over a thousand, different Linux distributions. At the core of every Linux distro is the Linux Kernel. The Linux kernel could be compared to an engine. That one engine is the same in every car, but every car that’s built around it is different, specialized and custom. Many countries produce their own distro. At present, I’m writing this on a distribution called Ubuntu – probably the best known distribution. Sometimes I use Fuduntu. The Turkish government is putting funds behind a beautiful linux distro called Pardus (which I’ve also installed). The Chinese have been developing Red Flag Linux. From Spain you can get Triquel. Each has its own peculiarities, advantages and even disadvantages. What’s incredible though, is that all of these distributions are free and they are developed by a community of programmers who might or might not receive remuneration for their work. They do what they do because they believe in the free and, most importantly, creative sphere entailed by the free exchange of ideas.

To me, there is a striking similarity between great poetry and great programming. They’re both a kind of literature. Great poetry and coding are both jaw-droppingly elegant. A great programmer can do, in just a few lines, what takes the uninspired programmer a thousand lines. Great programming is an art form. When you see it, the first thing you ask yourself is this: Why didn’t I think of that? Just four lines of code can match and outperform 200. When we read a great passage from Shakespeare or Keats, the effect can be the same. They can make the poetry look effortless and inevitable. The same could be said for music. Johann Sebastian Bach, my favorite composer, (in another time and place) would have been a programmer of unrivaled genius. He sets forth his musical ideas with precision and develops them with such a sense of simple inevitability that one could be forgiven for thinking that his music wrote itself.  Bach was God’s sewing machine and his cloth was sound.

What’s so unique about the Linux ecology (and without getting too specific) is the licensing under which the software is circulated. The license requires that anyone can look at the source code. In other words, any programmer is entitled to look at the work of another programmer and, hopefully, tweak and improve the previous programmer’s work. This is a supreme advantage when security issues arise. The openness of the architecture means that anyone — the little kid with a great idea to the computer scientist at CERN — can patch a problem. By way of comparison, all Microsoft software is closed source.  This means that no one — not the curious child, not you, not me, not the computer scientist — can look at  Microsoft’s code. If we tried, we would risk legal reprisals. Such is the case with the brilliant young man, George Hotz, who is presently being sued by Sony. When Sony initially sold their PS3, it was advertised as being Linux capable. This opened a wide world of exploration for kids, teenagers, and even the defense department. Why was the United States government interested in Sony’s PS3? Because it could run Linux. When the natural genius of curious youths opened a pandora’s box of problems for Sony, the corporation forced them and everyone who had already bought the units to disable the Linux functionality of their PS3s. In the meantime, Sony is seeking to brand George Hotz (and the other youths associated with him) as criminals.

The dispute is between the free exchange of ideas, exploration and innovation on the one hand, and a closed, litigious and insular development model on the other. Businesses, justifiably, need to protect their intellectual property. To do so, they’re increasingly using the software patent as a means to assert property rights not just over actual programming but ideas and concepts. (See also here.)

Now, you may be asking yourself, why is a poet talking about software patents on a web site dedicated to poetry? Consider the New York Times article by Scott Turow, Paul Aiken and James Shapiro: Would the Bard Have Survived the Web? You would think, with that kind of firepower, that the authors, one of them teaching Shakespeare at the University level, would have written a more persuasive editorial.

But their editorial doesn’t do justice to the phrase cherry picking. They didn’t just cherry pick, they killed the tree. They draw an analogy between copyright law and a certain kind of Elizabethan “paywall”:

“cultural paywalls” were abundant in London: workers holding moneyboxes (bearing the distinctive knobs found by the archaeologists) stood at the entrances of a growing number of outdoor playhouses, collecting a penny for admission.

Their use of the phrase “cultural paywall” is loaded. They seem to want to imply, without doing the work to support the contention, that the culture (and by that I assume they mean the great poetry and drama that we inherited from the Elizabethans) was only possible because playgoers were forced to pay for content. The analogy, as far as it goes, asserts that the web is a kind of modern day playhouse that lacks a “cultural paywall”. Therefore, no modern day Shakespeare could possibly make a living or “survive the web”.  Fair enough, but their argument is embarrassingly simplistic and glosses over a far more complex relationship among the poets themselves.

For instance, while they credit the very existence of Hamlet to the “cultural paywall”, they completely ignore or are collectively ignorant of the fact that Hamlet was probably a derivative work based on a play by Thomas Kyd. If the copyright laws had been enforced then, as they are today, Kyd would have sued Shakespeare for every nickel he was worth. Hamlet wouldn’t have been possible. In fact, Shakespeare had the reputation, rightly or wrongly, (and early in his career) for being a hack and a plagiarist.

Money changed everything. Almost overnight, a wave of brilliant dramatists emerged, including Christopher Marlowe, Thomas Kyd, Ben Jonson and Shakespeare. These talents and many comparable and lesser lights had found the opportunity, the conditions and the money to pursue their craft.

Yes it did. And if the Elizabethans had anything like our modern laws, money would have kept changing everything. Here’s what Robert Greene, a slightly older playwright, had to say about the young Shakespeare:

‘Base-minded men all three of you, if by my miserie you be not warnd: for unto none of you (like mee) sought those burres to cleave: those Puppets (I meane) that spake from our mouths, those Anticks garnisht in our colours. Is it not strange, that I, to whom they all have beene beholding: is it not like that you, to whom they all have been beholding, shall (were yee in that case as I am now) bee both at once of them forsaken? Yes trust them not: for there is an upstart Crow, beautified with our feathers, that with his Tyger’s hart wrapped in a Player’s hyde, supposes he is as well able to bombast out a blanke verse as the best of you: and beeing an absolute Iohannes fac totum, is in his owne conceit the onely Shake-scene in a countrey. O that I might entreate your rare wits to be employed in more profitable courses: & let these Apes imitate your past excellence, and never more acquaint them with your admired inventions.’

Now, this is nothing if not a searing accusation of plagiarism. He refers to Shakespeare as nothing more than an actor, diminishing his role as an author, by calling him a Puppet who does nothing more than use

Robert Greene

the Anticks, the words and phrases, of the authors who have come before — “garnisht in our colours”. In a sense, the actor is the consummate plagiarist. That’s his job. He mouths the words of the author, but don’t confuse the actor with the author, says Greene.

Greene then goes on to prick his target with the point of his quill. There is an upstart Crow, he says, beautified with our feathers. Still don’t know who Greene is talking about? He drops a hint. He is a “Tyger’s hart wrapped in a Player’s hyde”. This is a sly phrase mocking a line  from Shakespeare’s early play Henry VI, part 3: “Oh, tiger’s heart wrapped in a woman’s hide.” Evidently, the play and the phrase were well enough known that Greene assumed most literate persons (or playgoers) would recognize Shakespeare as the target. However, Greene’s not taking any chances. He next calls Shakespeare a Iohannes fac totum, a Jack-of-all-trades, who considers himself the only “Shake-scene” in the country. Greene all but removes any doubt as to the target of his barbs.

If only Greene and Kyd had had a modern patent or copyright lawyer. Turow, Aiken and Shapiro can rest assured that, yes, money would have changed everything. Were Kyd and Greene the only playwrights who considered Shakespeare a plagiarist? Probably not. If Sidney hadn’t been killed, he probably would have wondered at the many echoes of his own sonnets in Shakespeare’s sonnets. It’s not unreasonable to wonder whether Shakespeare would have survived our modern legal system, let alone the web. The web would have been the least of it.

But there are more problems with Turow, Aiken and Shapiro’s cherry picking.Their argument dies an ugly death when they write that Elizabethan theater’s end,

came in the mid-17th century, at the outset of a bloody civil war, when authorities ordered the walls pulled down. The regime wasn’t motivated by ideals of open access or illusions of speeding progress. They simply wanted to silence the dramatists, who expressed a wide range of unsettling thoughts to paying audiences within.

I hope the irony of this final paragraph isn’t lost on advocates of free and open exchange. Turow, Aiken, and Shapiro, themselves state that the theaters were closed because the “regime” wasn’t motivated by ideals of “open access or illusions of speeding progress”. Nothing so describes the current attitude of corporations like SONY, Apple or Microsoft. They have no interest in “ideals of open access or illusions of speeding progress”, unless it serves their bottom line. (The censors during the time of Shakespeare, likewise, had little interest in permitting plays that didn’t serve their bottom line: power.) When open access competitively threatens the bottom line of modern corporations, they have shown a willingness to use and abuse current copyright and patent law to criminalize whoever is cramping their wallet.

How does this relate to poetry and literature?

Poets, like composers, borrow from each other. Händel’s organ concertos shamelessly borrow whole lines of music from Telemann’s Tafelmusik (Händel liked and admired Telemann). Mozart shamelessly plagiarized an entire opening melody from JC Bach in one of his piano sonatas — a melody from one of Bach’s piano concertos (Mozart befriended JC Bach while a child). Not only that, but Mozart’s first four piano concertos were all orchestrations of piano

JS Bach by Pascal Moehlmann

sonatas by other composers. Bach rewrote Pergolesi’s Stabat Mater as Psalm 51.  The Elizabethan poets and dramatists were constantly borrowing lines and ideas from each other. Shakespeare, Dekker, Middleton, Jonson, all of them  stole whole passages and ideas from  translators and historians like Holinshed and Thomas North. They stole whole scenes from the Spanish poet, novelist and playwright Miguel de Cervantes. The lost play “Cardenio”, thought to be a collaboration between John Fletcher and Shakespeare, was just such a play. Cervantes died in 1616, the same year as Shakespeare. If Cervantes had had a modern copyright lawyer, and had been aware of all the borrowing, he could have died a litigiously happy man.

What if all this went on today? It does. The performer Vanilla Ice was hit hard by Queen and David Bowie for borrowing something as slight as a base line. Such borrowing is embarrassingly trivial compared to previous eras. Try Googling the words Beatles and plagiarism. Every time a composer wrote a set of variations, and made some money from it, they were infringing another composer’s intellectual property. Beethoven wrote dozens and dozens of variations for quick profit and recognition and almost all of them (but for those based on his own melodies) would presently be considered “infringements”.

The real title of Turow, Aiken and Shapiro’s article should have been: Would the Bard Have Survived the Copyright? 9 out of 10 Shakespeare plays probably would not exist, including Hamlet, the play which the authors hold forth with trembling quill.

Yes, writers and authors need to protect their intellectual property, but there’s more to it. There needs to be a balance. I have put all of my poetry, this editorial, and other writings on the web. I have gotten no money in return. Nothing. On the other hand, if it weren’t for the web, nobody would be able to read my poetry or writing. Though I have sent my poetry to dozens of publishers, my poetry has never been published or accepted by an editor. If it weren’t for the web then the body of work represented by this blog would be unavailable to you. None of my poetry or blog posts would be accessible.

Would I like to earn some money from my effort? Yes.

But the ability to reach a world wide audience, even without remuneration, is also worth something. The fact that I can put my poetry and articles on the web means that other artists will be exposed to it. Maybe it will influence them? What if an artist or another poet borrowed from my writing?

Good.

But there’s another side to the coin.

While I want other artists to borrow and be inspired by what I write, there are limits. Some artists and writers issue their works under a Creative Commons License. While I like the principles underlying their licenses, they go too far for a writer like myself. They allow not just the creative reuse of an artist’s work, but allow the wholesale copying and redistribution of that work. Creative Commons claims that their licenses “maximize digital creativity, sharing, and innovation”, but I would dispute that.

If Turow, Aiken, and Shapiro have an argument, it’s that artists like myself ought to be entitled to something. I agree. But where is the balance? I would like Creative Commons to develop a license that would truly encourage creativity and innovation, not just wholesale copying. There’s a difference and the current Creative Commons licenses fail to recognize it, either by choice or because such refinement is beyond the scope of their licenses. That’s too bad. I wish there were a truly creative copyright available to artists like myself.

And that brings me back to Linux, the open source community and software patent law. Programmers are creating their own literature. However, the current software patent law (like copyright law in the arts), threatens to drastically undermine, if not destroy, the spirit of digital creativity, sharing and innovation that created modern computing. If it hadn’t been for Compaq’s reverse engineering of the IBM PC, the course of history would be far different. Ironically, there probably wouldn’t be a Microsoft. Microsoft exists because Compaq dared to reproduce IBM’s BIOS. Their breakthrough allowed any number of business to create PC clones and vastly expanded the market for Microsoft software. Innovation exploded. The burst of creativity is comparable to the burst of poetry and drama during the Elizabethan era.

The doors to the playhouse were a kind of paywall and they were a tremendous boon but they weren’t, in and of themselves, the source and reason for the incredible flowering of literature. Poets and dramatists, though they may have sometimes resented the borrowing, were free to draw from each others work. The genius of the age was made possible by a relatively free and unrestricted exchange of ideas. Marlowe didn’t patent Iambic Pentameter, his “mighty line”.  Sidney, Daniel and Spenser didn’t copyright or patent the sonnet.

If IBM had successfully enforced a patent on their BIOS, nothing would be the same.

Companies like Microsoft, Oracle, SONY and Apple, all in the forefront of software patent abuse, are precisely (and ironically) the companies who benefited the most from the comparative absence of  aggressive and abusive patent enforcement. It should come as no surprise that they are now vigorously (and hypocritically) using patent law to suppress the very opportunities that allowed them to topple IBM. They are our modern IBMs.

Writing software for computers is a creative art. The software that you use everyday is a precise kind of poetry and the computer is its unforgiving audience. I learned to write poetry, in part, by writing for my Apple IIe. I learned to use words efficiently, how to formulate an idea and how to elegantly structure those ideas. The FOSS community, the community from which nearly all Linux and BSD distributions arise, is one where curious children and computer scientists are free to engage their creative talents. To paraphrase Turow, Aiken and Shapiro, they needn’t fear that the “authorities” will order “the walls pulled down”; but the abusive use of patent law threatens to change all that. No individual in the FOSS community has the wherewithal to fight a corporation’s patent lawsuit; and with the alarming proliferation of trivial and over-broad patents, the odds of unintentional infringement increase exponentially. Patent abuse could strangle the FOSS community. They know that corporations aren’t “motivated by ideals of open access or illusions of speeding progress.” They know that, in many cases, for profit businesses would simply prefer to silence their competition, good and bad, worried by “a wide range of unsettling” innovations.

Would a modern Shakespeare survive in our current legal climate? I doubt it.

Though there are limits to such parallels, the current world of art, music and literature has lost much because of overly litigious and legalistic copyright enforcement. A movie like Sita Sings the Blues is breaking copyright law. If Nina Paley, the creator of Sita, had strictly followed the dictates of copyright law she could not have afforded to create her movie. And that would be a tremendous loss to our culture. Correction: Nina Paley writes:

Sita Sings the Blues is in complete compliance with copyright regulations. I was forced to pay $50,000 in license fees and another $20,000 in legal costs to make it so. That is why I am in debt.  My compliance with copyright law is by no means an endorsement of it. Being $70,000 in the hole reminds me daily what an ass the law is. The film is legal, and that legality gives me a higher moral ground to stamp my feet upon as I denounce the failure that is copyright.

Check here for the full explanation. You can be fairly certain that Shakespeare, were he alive today, would suffer much the same fate despite the posturing of Turow, Aiken and Shapiro. How many works of art have not been produced because of these very constraints?

In a similar vein, a balance needs to struck as regards software patent law. Behemoths like Apple, SONY and Microsoft are increasingly using and threatening to use patent law as a bludgeon. They greatly threaten the free exchange of ideas, innovation and creativity. Bad patents can be trivial. They can be “an idea” rather than an actual piece of code. This means that even if a company hasn’t written software, they can sue a programmer who has, simply because the programmer’s idea was similar.

By analogy, the equivalent would be if a poet patented a rhyme like red and bed.

Any other poet to use this rhyme would be violating intellectual property. Yes, software patents, apparently, really can be that trivial. If IBM had pursued the idea of the BIOS under patent law, COMPAQ could not have reverse engineered the IBM PC.

If I have an argument to make it’s that there is little difference between creating software and the creation of poetry, novels, plays or music. A balance needs to be struck. Software is its own literature.  There should be some degree of protection but also an allowance for creativity and innovation. A patent or copyright, as Turow, Aiken and Shapiro would have it, can be thought of as a paywall, but abuse can turn these paywalls into the very opposite of a “cultural paywall”. They can easily stifle and kill a culture’s creative impulse. It’s this fact which the authors overlook, either deliberately or through ignorance when they vastly oversimplify Shakespeare and the abrupt closure of England’s 17th century playhouses.

I’m a believer in the free exchange of ideas for the purposes of art, creativity and true innovation.

Nearly all of my poetry is here, published on the web and free.

All my articles are free.

Greene, Shakespeare, Marlowe, Jonson and Middleton all thrived because there was a balance, if at times uncomfortable, between what was considered private and public. While they might have resented some forms of plagiarism and the unauthorized distribution of their plays, they also benefited from the same. If there was one place where Shakespeare would currently survive, it would be the one place most like the free-for-all that characterized the Elizabethan notion of intellectual property: The Web.

Who knows, maybe Shakespeare would have a blog.

And it would be a good one.

• Groklaw
• Debunking the Myth of the Patent Troll
• Wikipedia: Software Patent Debate
• Ben Jonson and Possessive Authorship
• Elizabethan Literature and the Law of Fraudulent Conveyance: Sidney, Spenser, and Shakespeare

For:

• Computer Programming as an Art
• Code is Art
• Freedom of Speech in Software
• What is Elegant Code?
• Programming as a fine art

Against:

• Code vs. Poetry: Code is not my muse
• Code is not Art
• Programming is not a craft
• Programming is not an art