I wrote a brief reply to Dave’s “It’s simple” reply to the following blog entry…
Dave Sifry thinks carefully about the arguments being advanced by Dave Winer and Larry Lessig about software copyrights. As Doc says, Sifry is moving the discussion forward, a good thing.

In a nutshell (i.e., annoyingly inaccurately), Lessig proposes a 10-year copyright for software, after which the source code would be released into the public domain. Winer thinks this would unduly damage small software houses: “If we have to publish our source code the users won’t pay for it. Ten years isn’t enough time to create a new market.” And that would mean the end of the major incentive for innovation.

Sifry disagrees with Winer on this: “I can’t think of a single example of software that generated revenue 10 years after it was written, unless you’re talking about software for the Space Shuttle or some other old piece of hardware…”

That’s the swerving point in this debate, the point at which the conversation starts to head into the weeds. All contending parties agree, I believe, that (1) the goal is to build a marketplace that encourages innovation and (2) that the way to do that is to let the market reward innovation. Unfortunately, to spread the value of innovation, two things have to happen that are contradictory from the market point of view: First, someone has to have a great idea for which she is rewarded. Second, you want that idea to spread and be built upon as raidly as possible and requiring that the creator be rewarded slows down the spread. Much butting of heads ensues.

So, the reasonable compromise (as I think all the disputants agree) is to set some number of years during which a copyright holds. The question is: What’s the right number of years? More important, how do we decide the right number of years?

We can’t merely be guided by individual instances where a copyright of n years would have been clearly too long or too short, for the essence of the compromise is that we’ll tolerate some inequity in service of a larger growth in equitable innovation.

Further, n is going to be different for different industries, applications and hardware platforms: Some areas have the metabolism of hippopotami and others of hummingbirds. There is no n that is optimal for each body type.

So, how do we move forward? Some numbers would help:

What is the average/typical revenue curve (dollars vs. time) for software?

What’s the curve in various industries, hw platforms application areas?

Do we have reason to think that the curve is about to change its shape or that it could change its shape in desirable ways?

What is the curve for software that we (subjectively) consider to be innovative?

I’m a humanities major and thus won’t understand the numbers even if someone has them, but otherwise it’s hard to see how the discussion can go much further.

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Lessig’s reply to Charles Cooper is a superb piece of rhetoric in the best sense: clear, persuasive, entertaining. He even uses one of Winer’s proudest software creations as his example of why we want to limit the term of software’s indentured servitude.

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