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Comment by CyberRabbi | Hacker News Reader

> I always figured the compromise solution was a (likely state-mediated) mandatory licensing board.

The majority of your argument seems to be based on the premise that you do not have rights over your own work. That the perceived public benefit has priority over your will over your own work. The day that the state ceases to enforce copyright based on that premise is the day that many types of software businesses will cease to exist. The incentives just won’t be there to create software that thrives under business models that require enforcement of copyright.

Microsoft, as the owner of Windows XP has the right to do with it as they see fit. It’s not anyone else’s concern whether they are not making the best use of Windows XP. Especially not a mandatory governmental board. It’s their property, it’s their choice.

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IMO, the rights from copyright are not "natural" rights so much as a negotiated deal with the rest of society.

Ownership of physical assets derives from concepts like "scarcity" and "exclusivity". You can't have my widget because then I can't use it, and maybe, worst case, you damage it. This is more or less a universally understood risk and we have agreed as a society to build a legal system around it.

Intellectual property has no such underpinning. Once the software exists, you can't unring that bell. There's no technical reason that anyone who wants Windows XP can't have a copy; it won't wear out.

Instead of coping with a universal physical inevitability, we built copyright around a social tradeoff instead-- hacking around the natural economics of a finished product that has zero marginal cost or supply constraint. This lets rights-owners simulate scarcity and exclusivity and enables some business models-- usually the "front-loaded" model of "build the product first, the sell it later in an bulk undifferented manner". Society has accepted this tradeoff because it was considered a net positive. Hence language like the original Copyright Clause of the US Constitution-- "to promote the progress of science and the useful arts". It's not a natural right, it's a tradeoff where the rest of us expect to get something in return.

I believe this means this deal is always subject to review, alteration, or cancellation if it no longer justifies its costs. Creativity will find a way. Music will be written for as long as "I'm in the band" is a viable pick-up line, commissioned art will exist as long as someone has more fursonae than artistic talent to draw them, and software will emerge from the millions of businesses who need it to function.

Nobody's business model is sacred and guaranteed, and nobody is entitled to hold the rest of the world hostage to maintain it. Did we hold back the modern world because the steam locomotive and horse-whip manufacturers would go out of business? Why should the commercial-software industry have any more clout?

In the grand scheme of things if you set a precedent that copyright ownership is highly conditional and subject to the will of people who seek to dismiss your ownership for their own purposes, that will disincentivize investment in producing software works.

Perhaps people such as yourself who wish to see modders able to do what they wish with Windows XP think there is no commercial gain in Windows XP for Microsoft. In a different world there could have been. No one can predict the life expectancy of a copy protected work. This unpredictability and mere potential for long term value is part of what incentivizes corporations to innovate and produce. Remove their unconditional long-term right over their work and you will disincentivize the advancement of the arts and sciences. You may disagree but it’s simply true given that copyright protection has only increased over the history of the US, not decreased.

> the rights from copyright are not "natural" rights so much as a negotiated deal with the rest of society.

All “rights” are negotiated deals with the rest of society. Rights aren’t set in stone, they are essentially abstract constructs. They must be collectively believed in.

> No one can predict the life expectancy of a copy protected work.

I'd argue that software, and in particular operating-system software is perhaps one of the most predictable categories. It inherently ages due to gradual drift on hardware support and growing burdens of security risks and unmet compatibility needs. A 20-year-old operating system is probably only interesting for academic, historic/nostalgic, or special-case legacy support reasons.

For Windows XP in particular, it's interesting to remember that one of the motivations to cram Vista out the door was that they had to provide something new on a regular basis to justify the value of subscription-priced license agreements. Microsoft knew it had a finite shelf life from that perspective.

> You may disagree but it’s simply true given that copyright protection has only increased over the history of the US, not decreased.

I don't think you can draw conclusions from the behaviour of lawmakers, who are likely easily swayed by existing stakeholders who have a financial stake in expanded copyright.

I think expanding copyright got a free pass from society as a whole, until the late 20th century, because copying and modification was technologically gatekept until then. There wasn't really the possibility of "remix" work as we know it, and aftermarket reproduction was likely to be clunky, expensive, and inferior in quality. The villian for copyright was an unsympathetic commercial player trying to sell you a crudely mimeographed reproduction under the table.

It didn't matter in 1895 that we couldn't produce a remix of the top novel or song, because even if we wrote it out, most of us didn't have the facilities to make a commercial-quality printed product for mass sale.

Now, with digital content, the gates are open. An XP-Delta ISO is of similar quality and usability to a "real" XP ISO, and can be brought to consumers just as easily. The pain-point moves to the legal restrictions instead. We also have a new era of more sympathetic copiers: the archivists trying to fight the forever-loss of DRM content, the hobbyists trying to preserve or expand a product they loved, the remixers who are expressing themselves with bits and pieces of a shared zeitgeist that happens to be privately owned.

> I'd argue that software, and in particular operating-system software is perhaps one of the most predictable categories. It inherently ages due to gradual drift on hardware support and growing burdens of security risks and unmet compatibility needs. A 20-year-old operating system is probably only interesting for academic, historic/nostalgic, or special-case legacy support reasons.

Windows XP has only “aged” because Microsoft made a marketing decision to make it seem as though it has aged. Windows XP likely shares millions of lines of code with Windows 10. They only have the appearance of being a different product for marketing purposes. As a copy protected work, one is a direct derivative of the other. This type of life expectancy cannot be predicted.

Good policy is generically applied, fair, and sound. Saying “well operating systems should not have the same copy protections as other works for xyz reason” isn’t effective policy and would likely be found self-contradictory in court.

> I don't think you can draw conclusions from the behaviour of lawmakers, who are likely easily swayed by existing stakeholders who have a financial stake in expanded copyright.

Why not? What is the other side of the coin? The people arguing for decreased protection are doing it with no intention of starting businesses. They are ideologically motivated, not pragmatically. They simply want a world where they can do whatever they want with anyone’s IP because they think that’s how the world should work in the abstract, not because they intend to produce anything of sustainable value. Most of these detractors want to create one-off art pieces for the fun of it. That doesn’t bring food to the table or build a long term foundation upon which more advanced works be built.

The people arguing for more copyright protection do it with the intention of continuing to build more sustainable value. This results in more jobs and a larger economy.

> pieces of a shared zeitgeist that happens to be privately owned.

Chance has very little to do with it. We used Windows XP because Microsoft spent billions in marketing to distribute it and grow the PC market. It didn’t just happen by accident. Look at all the other fully functional hobby OSes that exist today. Look at ReactOS. Look at Linux. It’s not an accident that they don’t have the market share that Microsoft does. They don’t have an institution that is properly incentivized to market them to the masses. The most well known and used alternative OSes are Fedora and Ubuntu, can you guess why? It’s not random.

> The people arguing for decreased protection are doing it with no intention of starting businesses

Is the only possible social value of creative work the generation of a business? Maybe some things are simply better as a universal social infrastructure-- the benefit is that it exists for other things to be built around it, rather than as a direct business.

> Most of these detractors want to create one-off art pieces for the fun of it. That doesn’t bring food to the table or build a long term foundation upon which more advanced works be built.

To me, the big benefit is to move creativity from "the artist with his unsullied vision" versus "iterative multiplayer development." It's a principle I'd love to see not just in software, but all creative endeavours.

Yes, no individual hobbyist is likely to be able to spit up a project with the scale and scope of Windows XP, but a thousand hobbyists, each working their own fixation and interests, can potentially take an existing product and add real value to it-- or, eventually ship-of-Thesus the whole thing into something fresh.

Maybe you've got someone fixated on the device driver so he can keep using his one specific printer, or a student who wants to do his Ph. D. thesis on scheduler technology Another person just wants to replace every use of the world "whitelist" in the code.. Some of this stuff will be self-indulgent "art projects" but others are motivated by real productive aims.

You can't stop them, but now you also get the opportunity to cherrypick it. A new value centre emerges in curation-- like the role a Linux distributor plays. People will support a strongly opinionated project like Debian or Clear Linux because they trust the choices they make in curating and packaging other people's work, even if you could manually assemble the same elements from scratch yourself. The curators can then bring on professional developers to ensure that their interests are represented in future development.

The model you are suggesting works to some extent but it just isn’t as effective or efficient as the Microsoft model. Compare the usability and the prevalence of the Linux desktop (mostly advanced by red hat) to the Windows desktop.

In any case people are already free to build projects collaboratively and the GPL provides a workable legal platform for that model. Microsoft has opted out of that model and it’s their right to do so, it’s no one else’s right to force them into it. If people want to build a retro modded Windows XP compatible experience, the law fully allows them to reverse engineer and reimplement it. They are better off basing their work on something like ReactOS, which has already done lots of that work, instead of Microsoft’s IP.

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