March 24, 2019

.comment: Strange Alliances in U.S.v. Microsoft - page 2

First Principles

  • January 24, 2001
  • By Dennis E. Powell

There are a lot more opinions about Microsoft Corporation than there are reasoned opinions about Microsoft Corporation. There are those who love Microsoft because it has made once-complicated computers into household appliances easily accessible to everyone. There are those who hate Microsoft because the company's software isn't really all that good.

The Linux community does not count among its members very many Microsoft partisans. Buried deep inside is a principle, albeit a wrong-headed one in my view, but nevertheless one arrived at by people who gave it some thought. Richard M. Stallman, who I think would take little issue with being called very liberal, came up with the idea that software ought to belong to no one, that it ought to be free for use by anyone. He is supported in this by the Free Software Foundation and its lawyer, Eben Moglen of the Columbia University Law School. Moglen has written about what he sees as the injustice of intellectual property rights, which is how the have-nots often approach the haves. Indeed, that has been the exact effect: it has given the cover of outraged victimhood to a multitude of people who simply want free stuff. Too bad. Guess what, folks: Napster is wrong! It is the theft of other people's work. Absolutely no one is in any way entitled to the fruits of the labor of anyone else. It is a truism that those who believe that intellectual property belongs to everyone have no intellectual property of their own. Those who think that stealing is okay have nothing worth stealing. Those who believe they're entitled to the work product of others often have no work product of their own that anyone would bother to steal.

Missing in the Moglen philosophy is a fundamental distinction: the difference between giving and taking. It's perfectly wonderful when talented developers produce fine software and make it available for all to use. But it's quite another thing when people, armed with some phonied-up sense of entitlement, pirate software that was plainly not given them. (This is a fundamental disagreement between liberalism and conservatism, by the way. The liberal notion is that if someone makes a lot of money, society, as represented by the government, is entitled to a greater percentage of it than it is to the income of someone who produces less. Those who would raise some sort of fairness argument need to come to terms with this one first. It is also the way whereby the demagogue rouses the rabble: pick a scapegoat, be it "top one percent of incomes," the publishers of commercial software, the Jews, and make them the enemy. Tell them that they are doing harm to "the people." The result is always a compliant mob.)

That having been said, it is certainly possible for thinking people who believe that the human situation is that of an anthill to arrive at the belief that if I have a thousand dollars, that money is best spent by taking it from me and giving a penny apiece to 100,000 people. Moglen would counter that with software, it can be given to everyone on the planet and diminish the original owner not at all, because he still has it, too. Which is nonsense. Its value as a means of income is utterly eliminated. (I believe Moglen favors income, though I guess the next time my wife receives a fundraising letter from Columbia Law -- tomorrow or the next day -- I could ask her to offer $10,000 of Moglen's salary as a donation in his behalf and we could see what he thinks of it.)

So the biggest and loudest background noise in all of this is the view that because we want free stuff, software ought to be free, and we wave RMS and Moglen like bloody shirts atop sticks to give us our moral justification, to the extent that moral justification still matters. Microsoft doesn't give much stuff away, and prosecutes those who liberate Microsoft's stuff, so they're automatically among the enemies.

In my list of Microsoft advocates and opponents there are some we can eliminate. Michael Kinsley is an employee of Microsoft. There's no other way of explaining his defense of the company, because in all other views he's to the left of Ralph Nader. Boies, Bork, and Starr are paid to take their positions. There is nothing wrong with this; indeed, we would be in sorry shape indeed if lawyers did not adhere to the code of providing spirited advocacy to their clients no matter who that client is. We cannot and should not know the personal views of the lawyers in the case, because their personal views just don't matter except insofar as they might color their work.

Which leaves . . . Rush and me.

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