A while back I made a comment about the differences between e.g. drugs and software when it comes to intellectual rights, and how this should lead to different rules for copyrighting these very different intellectual properties. It seems from this article that I'm in good company. Well, in company at least. There's a quote in that article from Lawrence Lessig's The Future of Ideas that is almost to the same effect as my position. I gather Lessig is a controversial character - at least in the US - and all the talk of the commons would tend to brand him as left wing, but really I don't think this as to be a partisan issue.

The argument is not against the idea of property at all, but rather that the claims of property- in the case of software - are too weakly formulated to hold merit. Since nobody documents software properly, closed source means that the claim of property becomes rather vague and you can make all kinds of claims of infringement from a relatively broad purely functional definition of software. You need that physical aspect of the software that is the actual construction process, i.e. you need the source at some point.

The second part of that argument is that the vagueness of software interfaces means that any property claim is effectively much wider than it appears since nobody but the source holder can figure out how to make good use of the copyrighted software. This effectively broadens the patent beyond any original claim, which is of course very much the case with Windows and the blurry distinctions between the platform and the Office applications.

For a related discussion of the entertainment industry's killer grip in online freedom, this article is just great.