Most readers of this blog are well aware of recently Amazon kindle 1984 creepiness, so I won’t rehearse the details here again. If you care about these issues, well, Defective by Design has a petition you can sign.

There is a lawyer down the road from me, who I am lucky enough to see on a fairly regular basis. He is just a neat guy to talk to and when it comes to the law, I am extra fond of him because of these types of clever smackdowns he is so good at formulating. Well said James.

I had my first bona fide twitter/facebook/identica argument. I stopped it pretty quickly as it is already pretty annoying to receive a parade of tweets; it is more annoying when it is a shouting match.

The content of the argument, however, was interesting. I had posted a short excerpt from RMS musings about how the Pirate Party position backfires on free software

I posted an abbreviated version of the following:

“I could support a law that would make GPL-covered software’s source code available in the public domain after 5 years, provided it has the same effect on proprietary software’s source code. After all, copyleft is a means to an end (users’ freedom), not an end in itself. And I’d rather not be an advocate for a stronger copyright.”

Jeremy was kind enough to take the argument off the 140 character twitterverse and post a thoughtful response. His stance is that copyleft and CC are actually part of the problem—representing some wimpy band-aid that does nothing to solve the problem of copyright and perhaps make it worse because it sanctions copyright as appropriate. In his own words:

However, because people can license things under copyright and ‘give them away’ or enter into other terms of contract. There is no felt necessity for resolving the real problem of copyright.

I respectfully but totally disagree. It is not that I inherently value the legal counter-power that copyleft licenses represents. It is just when viewed in historical context, copyleft was and is still no band-aid . A better metaphor is it was the tourniquet that saved the life of software, whose life was being slowly but surely suffocated by the mighty weight of IP law.

When RMS came up with his legal hack, there was literally a hundred year train (really older) barreling in one direction, going 1000 milers per hour whose sole purpose was to make property out of everything—software, seeds, modified bacteria, NBA scores–a trend that went nearly unabated through the 1980s and 1990s. One was not going to stop that mighty train and the 1000 pound gorilla (aka the trade associations) riding/driving the train. Indeed, Lessig made a valiant attempt at slowing down the train with Eldred and failed miserably (no fault of his)—so much so—that the court was not even split on the decision. It was overwhelmingly unwilling to stop the march on congress that allowed for greater and greater term extensions!

At the time Stallman took action, there was little to no room in the court of policy, in the court of law, and in the court of traditional politics to do much of anything to fix the problem. If he had waited ten years, I would not be publishing this entry on Word Press but some gawd awful proprietary system, probably run by AOL or something.

So Stallman fixed the problem as a hacker might: he understood the system so well, he used it to undermine it and take it down a different path.

Which gets me to my second point: when it comes to CC licenses, it is certainly the case that these might indeed affirm copyright as there is no clear standard of freedom. Further the language that Lessig likes to uphold as well as that of “choice,” which creeps close to a neoliberal ideology. This has been magnificently critiqued by lawyers, notably by Niva Elkin Koren in her piece Exploring Creative Commons: a Skeptical View of a Worthy Pursuit and Free Software advocate Mako Hill….

When it comes to the copyleft, I in fact don’t think it upholds copyright in any meaningful way. In fact, it signals the complete opposite. Now, I am going to dip into a little Derrida, which I hope does not deter some of the geeky readers. On the whole I can’t understand the guy but he has some great insights, when my brain can get it and I do my best to make him palpable.

One of his points is that naturalized proposition (like heterosexuality or until recently copyright) or social fact both presupposes and ultimately propagates what it excludes (also explored by Judy B as I like to call her and David Graeber).

It is just this structural quality of language and cultural concepts that Richard Stallman exploited when he established the first F/OSS license, the GPL. What is important to highlight is that while mainstream copyright discourse and related IP laws necessarily presuppose their opposition, they lack any meta-pragmatic indication of this presupposition. Most of copyright’s recent legal history represents a vehement disavowal, through economic incentive theory, of oppositional entailment of the copyright. The GPL more clearly speaks a meta-pragmatic commentary on its oppositional existence, an awareness even built into its informal name: copyleft, which explicitly indexes “copyright.” That is, it is created in direct opposition to copyright even if it makes use of it, which is why in the end, it does not serve the purpose, aim, or content of copyright.

In an essay on the law, “The Force of the Law: The Mystical Foundation of Authority” Derrida also makes the point that law is respected not because it is just, though it can be, but because it inherently carries with it a whole lot of authority, sanctioned by state power and all sorts of small and large acts (getting a ticket, getting thrown in jail) which keeps us all in our legal place. It also takes a whole lot of (effing draining, deflating) effort and gobs of money to challenge a law, which is one reason it carries this authority (his argument is far more sophisticated but I think you get the gist).

I would add that constitutional laws, like copyright, are doubly more authoritative as it they are buoyed by the foundation story/myth what have you of this country. That is, there is law, and there is Law, and Constitutional Law is of the latter kind.

And yet, RMS questioned or deflated the very authority of the law, which is precisely what was so transgressive and exciting about his actions. He took a a Constitutional mandate and redirected without the courts, without the judges, and for the most part without the lawyers (he, of course, used Eben Moglen’s help to draft the language).

Derrida, drawing on Walter Benjamin, notes how the figure of the criminal inspires and garners our attention, admiration, and awe, because he stands outside of the law and thus also reveals the violence of the law—or the ways in which we are all bound by the law whether we like it or not. Now, Stallman is no criminal. But in creating the copyleft, RMS did some violence to copyright, demonstrating its oppression (as applied) and another path, again without going through the usual legal paths.

This is not to say that his path or that of CC are the only ones or the best one’s for IP in the future. This is not to say that all is peachy in Copyleft-Landia. I take seriously Peter Jaszi’s critique that a legal counter power might rob the argumentative power for fair use.

I, for one, would like shorter copyright’s for all sorts of media and genres. I want the type of fair use where I can include this photo in my forthcoming article and not think twice about it. And I would looooooooooove a policy or legal or traditional grassroots movement that would kick some serious ass in Congress or the courts. And indeed, having a vibrant example to turn to in the form of CC/Copyelft, is perfect ammunition for whatever traditional political path may crop up. I don’t think that its existence automatically entails death of or for the politics of fair use or any other anti-copyright measures. One must be crafty about how to conjoin various streams and movements because in the end, a diverse political ecology is what we need instead of a political mono-culture.

This is also not to say policy and traditional politics are not powerful in their own right. It is just in the historical circumstance of the time, when the legal push to make property out of everything was unstoppable, RMS’ solution was/is far more than mere band-aid.

Bill Moyers has obtained this health insurance document outlining how to react to the movie Sicko. Pretty fascinating read.

After quite a few years of work, revisions, procrastination, and a few life changes, I have finally published a lengthy piece in Cultural Anthropology on code and speech entitled “Code is Speech: Legal Tinkering, Expertise, and Protest among Free and Open Source Software Developers, published in Cultural Anthropology. Debian figures pretty prominently as does the arrests of Jon Johansen and Dmitry Sklyarov and the DeCSS Haiku

update: If you have access to a University library, you can get it now. If you don’t, it will be available for free (as in beer) in a few months, and I might also post an uncorrected proof (as I believe I have permission to do so) or can send it to you if you request it. I have posted the pre-print proof here. Since these are the uncorrected proofs, there are a few minor mistakes.

Though published, this is also, much like software, a work in progress as the material represented here will also be in my book and the good news, is I can seriously expand on the issues I have raised. So I am looking for interested readers for feedback, which will thankfully make it in a book that I can post here.

Abstract below:

In this essay, I examine the channels through which Free and Open Source Software (F/OSS) developers reconfigure central tenets of the liberal tradition—and the meanings of both freedom and speech—to defend against efforts to constrain their productive autonomy. I demonstrate how F/OSS developers contest and specify the meaning of liberal freedom—especially free speech—through the development of legal tools and discourses within the context of the F/OSS project. I highlight how developers concurrently tinker with technology and the law using similar skills, which transform and consolidate ethical precepts among developers. I contrast this legal pedagogy with more extraordinary legal battles over intellectual property, speech, and software. I concentrate on the arrests of two programmers, Jon Johansen and Dmitry Sklyarov, and on the protests they provoked, which unfolded between 1999 and 2003. These events are analytically significant because they dramatized and thus made visible tacit social processes. They publicized the challenge that F/OSS represents to the dominant regime of intellectual property (and clarified the democratic stakes involved) and also stabilized a rival liberal legal regime intimately connecting source code to speech.

Permissions. Unix geeks know them well as they are constantly handing them out, taking them back. Academics, when it comes to their publishing rights, don’t know what permissions they have or given away. Once you signed the contract you may also have no idea where you filed it, if you filed it.

But now if you want to know, it just got a heck of a lot easier. I was just alerted to a website Sherpa RoMeo that helps you figure it all out! As they report on their front page:

“Use this site to find a summary of permissions that are normally given as part of each publisher’s copyright transfer agreement.”

Now that is a nifty tool!

I love drinking water, talking about the future of water, and am especially passionate about the need for clean water. I hate the idea that we have polluted our oceans, our lakes, our rivers and this water of life, is of course, indispensable. Today, I found out about this amazing project, Water Canary, a project out of NYU’s ITP, which is building low cost sensors to detect toxins in water (in Africa in specific but it seems like every corner of the earth is quite eligible for such toxic sensing). All I can say is WoW. There is just so much potential for this type of project of informational visibility and I can’t wait to see it develop.

So I am sipping some hot chocolate made from a recently purchased cream substitute by the name of Mimiccreme. Honestly, the stuff tastes good and better, it froths, unlike most non-dairy substitutes. Yet there is a hitch (there always is). As I was whisking away at my cream (mixed with water), I was staring blankly at the box and noticed that they have applied for a patent, which is indeed the case. Since their formula is made out of nuts, their motto is “Not Crazy Just Nuts” and if they are granted the patent (though I am confused as to what they are trying to patent) it will be Nuts and Crazy as well.

update: Ettienne pointed us in the comments to the the patent application

There is a lot of madness when it comes to psychiatry. One recent example of madness–perhaps insanity– is this faux peer review journal. At least there seems to be a growing counter-current in medicine that wants to sever the umbilical cord between doctors and drug companies as well as a vibrant grass roots move to embrace a different politics in and of madness.

Feel the fear and do it anyway