Samizdat and ravioli: an editorial

As you've probably already read, the CP consortium has recently gotten a hold of the draft of the Alex de Tocqueville Institute's new Samizdat paper. Although it purports to focus on the economic implications of open source and so-called "hybrid source," a large part of the paper focuses on the creation of Linux, and whether it was done legitimately.

The paper suggests that writing Linux in such a short time was a fantastic feat, since only magickal code wizards can write OSes in such a short time - after all, look how long it takes Microsoft to release new version of Windows!. The catch: Linux isn't an OS. That's right, as you probably knew already, Linus didn't write a full-blown OS in 6 months. He wrote a kernel, in fact a hardly working one as of its first release, which was later combined with the GNU tools that already existed. It took years to get it up to par with Minix and Unix. So it wasn't really THAT amazing that Linus made the kernel at the speed he did. By contrast, Microsoft churns out new tools, interfaces, filesystems, web browsers, media players, drivers, and other bloated features with every release of Windows these days.

As one of its main arguments, the paper brings up the fact that Linux was written out of modified Minix code - something which has been said by Eric S. Raymond, among others, as how it was made. However, it is accepted that there is no Minix code left in Linux. Since it was based on Minix, it's a derivative work, says the paper. Well, obviously the author of the paper isn't really aware of the meaning of the term 'derivative work.' A derivative work is "A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship...." according to 17 USC 101. Is Linux a REVISION of Minix? No, clearly they are different products.

Consider the following.

I want to build my own car. Luckily I already have a Ford Taurus, although it is a Ford that I've leased, and as such I can't use Ford's special parts to make my own car (a derivative work, so to speak) due to the leasing agreement, which seeks to protect Ford's unique way of making car parts. So I start by replacing the engine. Then I replace the frame. Gradually I remove all the Ford parts from my car, replacing them, until all the Ford parts are gone. In fact, I even take the "special" Ford parts and reassemble them so that I now have two cars, and I return the original car so I can end my lease. The Ford reps never know that I used the car part "code" if you will to make another car.

Is my new car a Ford too?

Does Ford own my car? Can they sue me for making a derivative work of their car, thus violating my leasing agreement? What if I used the Ford parts as a framework for a giant bowl of cheese ravioli, replacing the engine with a block of mozzarella cheese, the frame with pasta, and the leather of the inside with tomato sauce, until there are no more Ford parts? Does Ford own the rights to my ravioli? When I go to enter my bowl of ravioli into the Guiness Book of World Records, whose record is it - mine or Ford's? If I decide to mass produce Giant Cheese Ravioli Bowls and sell them, does Ford get a cut of my profits?

Did I create my bowl of cheese ravioli, or is it just a derivative work of the Ford Taurus?

Did Linus Torvalds create Linux, or is it just a derivative work of Minix?

Thanks to CP writer Domingo Galdos for the metaphors, and Google Images for some pictures.

Posted by Andre at May 25, 2004 05:02 PM