In the shade of the commons, to download go here

Open Hybrid Space

The other night I was rocking out to a newly acquired swath of rock and techno from the 1970s and 1980s when Mako pinged me on IRC to chat about my recent blog post, the outcome of which the was his following blog entry. And indeed, I made the associations and links very quickly to gesture to the absurdity of how these example are collapsed and under the umbrella of IP law and as a move to argue for maximalist positions. He took the time to explain how certain folks, like Pat Choate in Hot Property used these very examples to argue for more not less protection.

Does anyone know of a case of people using these types of examples to argue the opposite or differently as I think can also be done?? (that is aside from Mako’s wonderful post)

Hope this sticks in Thailand yet spreads to other nations struggling with exorbitant drug costs… Time will tell…

I now need to start looking for a flickr replacement. Yes, I am offended by the patent.

When Cultural Studies released an issue on intellectual property last spring, I was somewhat annoyed and surprised that the issue was not made more freely available, given the topic of the issue. What was more frustarating was the CS has a lag policy for e-access so they don’t make available, even to subscribing institutions, issues until one year has passed. I think this is just a bad move in this day and age. If you can’t download it, well, you will lose a good percentage of your readership. I even ventured to the library 3x to get the issue but alas, it was out every time.

So today I was thrilled to read on Sivacracy that the issue is now available for download. The lineup is great and I look forward to delving in this week.

Many in the geek community know about and follow closely the politics of patents. So this site, Big Patents will surely be of interest to many, especially those who really need to know all about a patent and its history.

update:reading these patents can also provide hours of odd and confusing pleasure
From the site:

BigPatents contains a novel patent data set with features found nowhere else. You’re free to browse through the data and use our search to easily find patents.

If you choose to become a premium member, you will have access to the complete, real-time family tree for a patent or application, including all continuations and divisionals. Our Premium Info page has more information about premium accounts.

Premium users can also track changes to any patent family tree. Once you begin tracking a tree, you will be notified of new transactions for any of the applications in the tree, when any new applications are added to the tree, and when the status of any of the members of the tree changes

So, as readers of this blog know, I am deeply enmeshed and invested in a project that examines the cultural face of liberalism through such avenues as law, technoscience, and medicine. As part of this endeavor, I am interested in signaling and understanding the tensions in liberalism within one context (such as IP), one nation (as in the US) or across times and places.

Because I am going to this conference on Invention and Authorship at Case Western (am already in Ohio partaking of my family and the beautiful budding flowers of spring), I am revisiting these ideas as I chomp through all the marvelous papers that were pre-circulated.

And the theme of tensions in liberalism arose palpable during a visit at the CCA with Laura Murray an English professor who teaches at Queens College and runs the impressive Fair Copyright website, which every Canadian scholar should comb through, carefuly.

We read a her First Monday piece Protecting ourselves to death as well as another fascinating piece on Canadian copyrightTaking User Rights Seriously.

The session and her talk were quite interesting and my first real introduction to copyright’s life in Canada. Unsurprisingly, given the different role of the state as protector of certain rights (like health care) and a certain healthy suspicion of the US and its policy (and this is nicely explored by Murray), copyright is distinctly configured, with lines of similarity and diffferences. For example, IP provisions are not part of the Constitutional charter, the equivalent of fair use (“fair dealing”) is more circumscribed, universities often cower at what is perceived threat (she told us an amazing story about Simon Fraser’s draconian copyright policy that implored students to get permission for *every* citation, sigh), yet a a recent Supreme Court case came down very favorably strong for user rights and public interest.

By the end, it was clear that while there are similarities (and these will grow, I imagine, with “harmonization” via WIP0. TRIPS etc. but for reasons I state below, perhaps not), the life of IP is textured uniquely. And while there are differences in the law, point blank, some of the more interesting differences follow from non-legal conditions or legal factors quite independent of IP. And these are worth pointing out because they also give us a unique vantage point to really get at the motor behind SO much of American law, in general, and IP law, in specific.

During her visit, Laura Murray raised three (probably more but I am going by memory here) important differences, which were further elaborated during the disucssion:

1. Due to how governments congeal (through coaltions) and how they execute change, (apparently legal change/policy moves more slowly), this had led to change whose viscosity is more like molasses than oil in our country and often has worked in the favor of public interest and user rights in IP.
2. The Media still works in a more robust way than in the US in that it will shame and, shame some more, the government over things like IP so that they act as a constraint.
3. And in comparison to the US, the culture of litigation/lawsuits has a shadow of a life compared to the US.

So in fact much of the policy in Canada has little to do with the actual law of IP but with other legal factors or extra-legal factors. On top of this, it also made me realize that since things are stalled and since activists do and often compare things with their southern neighbors, I also wonder if activists are better positioned to actually intervne in this field than we are in the US, where things move quite fast, the media in general does not act as a lightning rod of shame (except for the Daily Show and Colbert Report, but I am not sure, yet, if we should count those as media) and even if the media does not shame, they rarely present IP as a pressing societal issue. Given these conditions, it will be very interesting, to the development and changes in IP in Canada following the pressures to harmonize.

Finally and this is perhaps to obvious to merit attention because it is signaled through the recognition that US law is largely case law, but lawsuits do truly generate so much of the law and are one of the central contexts underwhich we culturally understand (as I mean the proverbial citizenry “we”) the law. If anyone out there knows of any good articles/books that explores this, especially from a cultural, critical, or political perseptive, give me shout out… I would like to delve more into how this acrimonous and expensive (and potentially in some cases empowering) contextual matrix shapes US law.

So it seems like in the world of free and open source law and politics at least every 8-10 weeks there is a fresh controversy to hit the press. And the current one is over Lessig’s endorsement of DRM:

“In a world where DRM has become ubiquitous, we need to ensure that the ecology for creativity is bolstered, not stifled, by technology. We applaud Sun’s efforts to rally the community around the development of open-source, royalty-free DRM standards that support “fair use” and that don’t block the development of Creative Commons ideals.”

Already on Lessig’s blog there are a few attacks and others are starting to manifest.

For now I will just display the controversy. I see this as possibly an interesting turning point for the acceptance of Lessig’s politics in the wider world of free (note not open source) politics. In my work, I characterize Lessig as the Pasteur of the open source movement, at least as described in the work of Bruno Latour . He took what was a pretty esoteric and geeky world, and initiated a series of events, projects, and translations, that helped bring free software to a wider world and audience.

Now that this domain has been unleashed, there are now responses back and as part of these, we see stronger pockets of resistance and opposition to a Lessig-like politics. I imagine they will cohere even more strongly in the coming years, reshifting, yet again, the poltics of free and open source software.

There is “soul food.” And you can eat soul food while hearing soul music. Poems and literature often direct us into the depths of soul. But academic books rarely enter that sacred territory. And being a social sciencey type of academic, it sort of makes me sad sometimes that our lot rarely spice our writings with the traces of soul. That sort of thing is discouraged, for reasons that often have to do with the “science” half of “social science.” For research, analysis, and writing, dispassion is supposed to be our guiding light and for the most part, this is not necessarily bad for it makes for more comprehensible, manageable works. And let’s face it, too much soul, and you get intractable mush.

But every once in a while a dash of passionate soul is delectable and thankfully does creep into our work to shake away the cobwebs of dispassion that cling to define our academic style of writing. The genre of ethnography, being it is so interpretive, is somewhat susceptible to such outpourings and we can find traces of soul in more daring political tracts, cultural studies material, as well as literary analysis too.

Now the study of intellectual property, being it is dry and arcane, is probably one area that seems more like a “soul-crusher” than a soul-magnet. But this week I was pleasantly surprised to find the strong currents and overtones of soul in Paul Saint-Armour’s delightful book on IP law: The Copywrights: Intellectual Property and the Literary Imagination

I guess I am just saying that alongside a really set of interesting arguments about the dynamic history of IP and literary property, the book is written really, really well. In particular, the chapter on Oscar Wilde is simply stunning and not to be missed. And given that Oscar Wilde’s writing and life are as soulful as soul can get, the chapter is doubly soulful! Take a look:

Rather than naively imagine orality as a tonic to writing, as nature to writing’s artifice, or as authenticity to the travesty of type, Wilde recognized that the longing for orality as origin, nature, or authentic prehistory may be the most characteristic thing about print culture, which thrives by manufacturing origins and measuring its distance form them in order, alternately, to wound or worship itself. His writing both embodies and inflicts an ache for the forms of orality while elaborately demonstrating their irrecuperability even their unknowability: we must return to the voice, yet as it now is, we cannot do so. (p. 94)

For a long time now, I have been interested in conceptualizing the rise of free and open source software within the context of the massive changes in intellectual property that have transpired in the last 25 years. In specific, I am trying to write a history that demonstrates how these two trends went from being distant “second cousins,” to more intimate (though acrimonious) siblings.

That is, while we can never consider the history of free/open source software irrespective of the historical changes in IP law, it is also my sense that there came a time (around 1998-2000) when it became harder to separate the two, in the following sense: in the last 5-7 years, free software users/developers have become aware of these global forces (and how they impinge on their ability to write software), while social actors who pushe to strengthen IP provisions, also are aware of the dynamics of F/OSS and the way it threatens their tactics. There is a now a mutal conscioussness of each other.

There are various events–notably those surrounding the DeCSS Protests, the
Dmitry Skylarov affair, and the anti-patent initiative in the EU–that act a concrete sites by which to claim and analyze this close relation.

But sometimes, it is nice to get a sense of the more subtle ways in which this relation is playing out and below, is a snippet from the follwing article, Free Software, You Can’t Just Give it Away (via Decoding Liberation) that reveals just this. Written by a Mozilla Foundation employee, Gervase Markham, it tells the following amusing tale:

A little while ago, I received an e-mail from a lady in the Trading Standards department of a large northern town. They had encountered businesses which were selling copies of Firefox, and wanted to confirm that this was in violation of our licence agreements before taking action against them.

I wrote back, politely explaining the principles of copyleft – that the software was free, both as in speech and as in price, and that people copying and redistributing it was a feature, not a bug. I said that selling verbatim copies of Firefox on physical media was absolutely fine with us, and we would like her to return any confiscated CDs and allow us to continue with our plan for world domination (or words to that effect).

Unfortunately, this was not well received. Her reply was incredulous:

“I can’t believe that your company would allow people to make money from something that you allow people to have free access to. Is this really the case?” she asked.

“If Mozilla permit the sale of copied versions of its software, it makes it virtually impossible for us, from a practical point of view, to enforce UK anti-piracy legislation, as it is difficult for us to give general advice to businesses over what is/is not permitted.”

This is precisely what I am trying to get at in my historical account. I have written a first stab of this history for a conference I am attending next week,
Informatics goes global. Here is the introduction to my paper, which suffers from some problems but hopefully it will be whipped into better shape soon.