Manifestos and Buddha Natures

To see how the reformers’ prophecies played themselves out in the con­crete context of platform software, we must understand that Microsoft was simply being true to its nature, behaving as a rational monopolist should, seeking to extract every last profit from its property rights, and redistributing maximal resources from consumers to shareholders.

Recall the source of the problem. In 1790, the very first Congress rec­ognized that authors and inventors required different incentives. It responded by passing two distinct laws. For more than 160 years, the line between authors and inventors, between copyrights and patents, appeared to be clear. But sometime after Claude Shannon explained that he was going to write a chess-playing program rather than build a chess­playing machine, the line began to blur. Programmers felt that they deserved protection, and we decided that we wanted to protect them. Somehow, though, we never quite figured out whether they were authors or inventors—or perhaps something fundamentally new. In fact, we never bothered to think about what they were or how we could best motivate them to innovate. And so today, software companies write source code in a high-level programming language that competing pro­grammers can decipher easily. They then compile it into object code com­prehensible only to machines, patent any clever algorithms that they might have captured in their code, copyright both the source code and the object code, hide the source code in a vault where it remains a trade secret, and circulate copies of their copyrighted object code. Software now enjoys a unique combination of protections. But is it the best protective regime possible? Or could we do better with a little explicit thought and an eye toward reform?

Some radical reformers drafted a Manifesto proposing reform, advo­cating a return to the constitutional bargain.

The Manifesto’s creators realized that developers could always opt out of the deal, by simply keeping their source code secret. Developers who chose that route could control their ideas, their implementations, and their APIs, but not the distribution of their object code. Opt-ins and opt­outs would require radically different business models; their choices could even bisect the software industry. But a failure to reform the system, these radicals warned, could lead to disaster. Such was the Manifesto’s message.

But temple messages are often opaque, and prophecies often ambigu­ous. For example, when a monk asked the Zen master Jtishu, “Does a dog have a Buddha nature?” Jtishu replied: “Mu.”⁵ We may do better by posing our queries to someone other than a Zen master. Does a corpo­ration have a Buddha nature? More specifically, does Microsoft have a Buddha Nature? Those are questions that I can handle without Zen master Jtishu. Microsoft does have a Buddha nature. All corporations possess the same Buddha nature. The principle of profit maximization defines the corporate inner essence. Microsoft’s behavior was true to its nature. Microsoft tried to use its property rights, in a rational manner, to maximize its profits.

To see the integral nature of those rights in Microsoft’s behavior, however, we must take a Zen-like approach. We must continue our journey down the rabbit hole to where the trial was not: the realm of application software. We must then compare Microsoft’s behavior to that of Musoft, a mythical platform-software monopolist whose behavior is always true to its nature. Musoft differs from the real-world Microsoft in one important respect. Musoft dwells in Manifestoland, an alternate reality identical to our own, except that the Manifesto’s regime protects software IP rights. When we come to understand the relationships between applications and platforms, between prevailing IP rights and the Manifesto’s reforms, and between Microsoft and Musoft, we will be enlightened. Only then will we comprehend the Microsoft trial and see the path to a true end game.