So my buddy Chris Anderson, a fellow digital/comm scholar pointed me to this very interesting case concerning an open source project, originally funded by a foundation that was just sold to a Large Corporation. Here are the details:

Everyblock is/was a grassroots journalism web-based project that got a kick start thanks to a 1.1 million grant provided by the Knight Foundation. The project, as its name, suggests, reports on uber-local news, like your hood, your block. That sort of thing. Laudable stuff. The Knight Foundation required that the code be open source and it looks like there is a GPLv3 attached to the codebase.

Apparently, Everyblock was just acquired by MSNBC. At question is not only whether the future of its codebase will remain open but whether it is ethical to take foundation money and turn around such a high profit from a corporate buy out.

Chris, whose passion is grassroots journalism, has been tracking development and has noted some of this ethical and possibly legal quandaries. As he noted on Gawker:

That’s not good enough, says CUNY assistant professor Christopher Anderson, who writes that MSNBC has skimmed off the value of a project “developed by common labor;” Anderson is upset in part because it’s not clear whether EveryBlock’s code will remain openly available. NYU Local publisher Cody Brown has called for more transparency around the deal.

Whether or not one agrees selling a foundation-funded project to a corporation is kinda dodgy or not, the legal question remains: since the code is under a GPL3, doesn’t MSNBC have to also keep it under the same license if modified? Or can they take the code base since Everyblock is a web-based service? (I really am looking for answers here).

The world of Free Software is riddled with ironies, or so I like to tell myself, as I am devoting a history chapter that uses the frame of irony to trace the historical rise of this technological domain. One irony (though not entertained in the chapter) has to do with the status of Free Software in the academy: it is pretty weak among CS-ey types and yet Free Software is often identified as a paragon example of the openness and communitarian elements of how academic science is supposed to work. So.. what is exactly going on?

Recently I had the pleasure of discussing this issue a bit with Colin Turner, a professor of Mathematics at University of Ulster who has given this issue a lot of careful thought and is trying to make some changes on the academic side of things. You can read and learn a little more about his them in this thoughtful interview and his blog.

Do you know of any academic programs where FS was nowhere to be found but with some clever or bold initiative it flourished? Thoughts of what can be done to make FS a realistic presence in academic department? Is this perhaps where the future of Free Software advocacy should be headed?

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.

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!

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

Feel the fear and do it anyway

This is a website kick started by artists who are collecting performance pieces critical of (and perhaps also commenting on) this pretty famous site, who is unhappy that the art project incorporates their name into their webpage. Here is some more official commentary from the EFF who is supporting the artists.

Great research opportunity for PhD Students out there.

Peer to Patent Summer Research Fellowship
New York Law School
Summer 2009

Background
Peer to Patent is the groundbreaking program developed by New York Law School and run in cooperation with the U.S. Patent and Trademark Office and the United Kingdom Intellectual Property Office, along with the assistance of a number of private stakeholders. It harnesses the power of citizen-experts to assist patent examiners by searching for, identifying, and annotating prior art relevant to pending patent applications. A first Peer to Patent pilot was launched in June 2007. During the first year the project participants (peer reviewers) assisted in the prior art searches on 40 patent applications, generating 173 items of prior art. These items of prior art were the basis of rejection in over ten of the patent applications considered. In June 2008 the pilot was continued for a second year, and was recently extended to encompass a pilot program in the United Kingdom.

Research Issue
Although Peer to Patent has attracted over 350 active peer reviewers, the project team has little or no idea as to the motivations that cause these individuals voluntarily to contribute their substantial time to the project. The average reviewer spent approximately six hours searching and annotating individual patent applications. The project team also does not fully understand the best means for attracting additional peer reviewers to the project. In order for the project to scale to larger volumes of applications, both of these points need to be understood and addressed. More generally and theoretically, the motivations of citizens in producing material for governmental use are not well-understood. This fellowship seeks to provide an account of this sort of activity, as well as generate a design for a controlled study of incentive mechanisms for these sorts of activities.

Research Activity
The selected fellow will conduct interviews among a meaningful number of currently active peer reviewers to elicit their motivations for participating in the project and contributing their time. The fellow will review the non-profit motivation literature to provide a number of alternative methods of reward to determine whether any or all of them would induce the participants to continue their participation, increase their participation, encourage others to participate, or cease their participation altogether. Potential rewards may include: (a) basic recognition; (b) monetary interest; (c) cash awards; (d) prominent public recognition; (e) some other form of reward; or (f) no reward whatsoever. The fellow will develop a survey to be conducted among a wider segment of active and potential peer reviewers to test for validation of the data gathered in the initial sampling. From the results of the initial sampling, literature review, and survey, the fellow will develop findings on which to base an incentive program to attract and retain peer reviewers. The fellow will develop an experimental design to test the efficacy of each of these incentive possibilities.

Term
The fellowship will commence on or about June 1, 2009 and will continue until on or about August 31, 2009. The fellowship is a full time position for the three months stipulated; but this is open to negotiation for an exceptional candidate.

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