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John Graham Cumming‘s blog (the one and only entry):

May 26, 2005: I don’t have one; I don’t have the time

Open Source Software and the Free Software Foundation

I love free and open source software. In fact, I use open source software for database management, blogging, blog reading, web browsing, and doing dozens of other daily tasks. I love Linux, MySQL, PHP, and Firefox, in particular. Ocassionally, I even contribute some code – a script or function, usually – to the world, myself, without any licensing, whatsoever. I have a real problem with the core philosophy of the GNU project and Free Software Foundation, however, that software should not have owners and should always be “free” (in the sense that source code should always be available and users should always have the right to modify and redistribute it).

The FSF, of course, maintains that they are talking about “free as in speech, not free as in beer.” That is, “free software” refers to liberty, not price. You can even sell free software , they say. Of course, I want to know why in the world I would buy a product when I can legally get it for free and obtaining it for free is often faster, anyway; selling free software – unless you’re really selling support – is simply a losing proposition.

The problem with the GNU and FSF ideals of software development stems, I think, from a confusion about the nature of software. The members of these groups maintain that software is so different from other types of products – food, books, artwork, widgets – that it should never be proprietary. Certainly software is different, in the sense that software does something and in the sense that software is (theoretically) infinitely flexible. Let’s leave that for a moment, though, and consider the similarities software shares with other types of products.

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Kelo Fallout

I had to jump on the bandwagon, here, and comment on the Kelo case (KELO et al v. CITY OF NEW LONDON et al). For those who don’t know, the Kelo case was brought by a homeowner (Kelo) against the city of New London, CT, because the city intended to force homeowners off their land in order to allow private companies (Pfizer, in particular) to build there. The U.S. Coast Guard will also have a small museum on the land in question. The Supreme Court of the United States held (5-4) that the city has the right to take the land.

Now, the relevant law is basically the “takings” clause of the Fifth Amendment; it states, “nor shall private property be taken for public use, without just compensation.” In Kelo, SCOTUS extends the meaning of “public use” to include tax accounting (that is, the city hoped by drawing in businesses to raise tax revenue, and the Court decided that this constitutes “public use”).

I don’t have time on here to go into all of the issues, unfortunately, but as Justice O’Connor stated,

To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property–and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment.

And again:

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. “[T]hat alone is a just government,” wrote James Madison, “which impartially secures to every man, whatever is his own.” For the National Gazette, Property, (Mar. 29, 1792), reprinted in 14 Papers of James Madison 266 (R. Rutland et al. eds. 1983).

Frankly, this decision is a travesty. We tend to forget the Fifth Amendment, except in criminal trials (right not to self-incriminate), but the right to private property and the defense against government seizure thereof is actually one of the most fundamental rights in the entire Constitution and Bill of Rights. After all, what good are free speech, free presses, the right to vote, and the freedom of religion, for example, if an offended government can take a person’s land and declare it to be, say, a park, without paying a fair price for it? The Kelo decision greatly erodes our right to own private property.

Next step on this slope: LA starts forcing people who own what pass for “cottages” to sell out, so bigger houses can be built on the same land, raising property tax revenue. It’s not that big a step…

Much more thorough commentary may be found at the following locations: coverage
Volokh Conspiracy: Takings and Privatization
Volokh Conspiracy: Big Government for Its Own Sake
Pejmanesque: Livid Once Again (rather active discussion)
Power Line: Your Property Will Be Better Off in My Hands
Power Line: Takings: An Introduction

UPDATE: Let the madness begin! A private developer is seeking to use the Kelo ruling to build a hotel… on the land of Justice David Souter, who was in the majority on Kelo. This speaks for itself.

UPDATE #2: When life gives you (all of us) lemons… Dissent in style with Kelo gear