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.

My buddies over at decoding liberation recently participated in a video conference to discuss thier paper–An ethical assessment of free software licensing schemes–which produced some interesting blog debate. Worth checking out if you are interested in the nitty-gritty links between licensing and ethical standards.

A couple of weeks ago, at the CCA we had the pleasure of having a guest speaker: David Post. A law professor (and so much more if you read his bio) from Temple University, he writes on issues related to freedom and cyberspace. He is now working on a book, tentatively titled Jefferson’s Moose: Notes on the State of Cyberspace (check out some sections here. )

As he explained, the book uses a Jeffersonian framework (apparently Jefferson was quite interested in how to make the republican nation “scale” and he used the natural world as his guide), to think about the nature of the Internet and questions of scaling. At some point during our discussion, he referred to Jefferson as “the patron saint of hackers.” I, of course, got incredibly exicted when he said that (mostly because it was so right on and so darn eloquent too), but also because it captures how liberal ideals, live on, in radically different contexts. Of course most hackers and geeks have not read Notes on the state of Viriginia (Jefferson’s only book) nor do most house a small corner candlelight shrine of Jefferson atop of their Linux box (though perhaps they should).

But some of his most well known ideas, continue to have salience (you know, the famous, That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. “)

The fact that Jefferson acts a potent present-day icon demonstrates one example of how long-standing liberal values become practically articulated and revisioned. Of course they change, and the reasons for which TJ may act as a signpost often has more to do with present day conditions, than those of the past, but his example, and his ghost existence all over the web, is one way to think of both the cultural life of liberalism as well as the continuities, as well as transformations, with liberalism of times past.

Greg Lastowka , another fellow at the CCA, is also interested in cyberlaw, freedom, and all that good jazz and he recently passed along an article, Would Jefferson have googled? reporting on a speech by U of Michigan president Sue C. where she argues for the importance of Google Print.

All of this talk of liberalism and culture, reminds me that I should post a class syllabus I have recently developed “The Cultural Life of Liberalism” that is a first attempt to broaden the ways in which anthropologists approach liberalism as a cultural formation (outside of questions of multiculturalism, which has been covered quite exquisitely). Hopefully it will be up in the next few days and I can receive some feeback.

Want your daily geek?

Then check out this entry by Og så alligevel… on humor and stories on the Internet.

And check out a newish blog on free software news by Samir Chopra and Scott Dexter, two computer scientists from the NYC area who are now writing a book on ethics, licensing and free software for Routledge.

Mako Hill has written a short but important piece providing some clarity over the stakes and limits of revising the GPL.

The EFF is leading a class action suit against AT&T for helping the NSA spy on us (take note of clever AT&T logo redesign)

The Economist has a decent article, Desperate Measures that examines not only why the American system of health care is broken but is headed for even more perilous times (take note the usually pro-privitization, pro-consumer stance of the Economist at the end, actually and surprisingly gives way to a sensible claim:

The logic of consumer-driven health care assumes that unnecessary doctor visits and procedures lie at the heart of America’s health-care inflation. And it assumes that individual patients can become discerning consumers of health care. Both are questionable. Most American health-care spending is on people with chronic diseases, such as diabetics, whose health care costs many thousands of dollars a year, easily exceeding even high deductibles.)

I recently returned from the 1st GPLv3 conference held January 16th and 17th at MIT University. It was not so much a conference that unveiled a license, but was used to kick-start the process for the collective revisioning of the draft.

It was impressive along many fronts. This is the first major revision of the license in 15 years and the time is ripe for such changes given the many transformations in intellectual property law, the software industry, and F/OSS development in the last decade. The current GPL is slated to be clarified (especially related to linking and compatibility with other open source licenses) and new conditions, such as the appearance of DRM and the explosion of software patents, have garnered explicit response in the new draft.

It seemed like much of the new material or, at least talk about the license, dealt with patents, although patent retaliation and restrictions were not as strong or present as some had feared. Here is the basic clause: If a GPL “licensee brings a patent infringement lawsuit against anyone for activities relating to a work based on the program,” then one loses the privilege to modify the software.

Another clause, related to web-based applications, was met with great relief among the business-types many of whom were in attendance. As currently drafted, the GPL will not treat web-based applications as distributed, and thus code can remain closed. Now, however, one has the right to choose whether to keep their server application code open, one permission of a few others that will based on personal choice if retained in the final license.

There are many more techno-legal details that I won’t go into here, in part because they are nicely summarized elsewhere and I am more interested in other elements, notably the process of modification that awaits the draft in the coming year. Richard Stallman and Eben Moglen and others at the FSF are clearly well positioned to make the most significant and sound recommendations for the new license. And they have. And in the end, they, and in specific, RMS, will have ultimate authority to decide what stays in and what stays out. But they have opened up the process of revisioning to everyone who is willing and able to contribute, knowing that this is the right way to go, for pragmatic and ethical reasons.

As it currently stands, for revisioning the FSF has devised a related, two-pronged process. One entails a website where the document is currently housed. There, anyone can create an account, and add their comments, and more significant, is that one can read the commentary others have left for that section also and craft a response to others. As Eben stated during one of the speeches, they prefer comments that are hinged to one or two of small sections of the text instead of comments on large chunks or large multiple chunks.

The website is accompanied by 4 discussion committees who more or less are collectors and organizers of the data, but also offer their own input as this unfolds. They are going to wade through the many comments, track patterns, and transform comments into issues and release documents to the public (I think related to their recommendaitons).

Currently, the discussion committees exist in some state of ambiguity and are not explicitly categorized aside from carrying an alphabetical number. But they can be divided more or less into into (A) Foundation stakeholders [Richard Fontana and Eben Moglen will switch facilitating] (B): Corporate and Patent Intrests [Eben Moglen facilitating] (C): Laywers and Commercial Users [RMS facilitaing] and finally (D): Community, which includes many hackers from various development projects [Dave Turner facilitating].

So far, the organization and purpose of these groups is loose, but one gets the sense that this is exactly what the FSF intended. Since they (and much less anyone else), has ever carried out this sort of open and global legal endeavor, I suspect they are letting the role of committees congeal more organically, cementing into something more definitive as they figure out what that should be.

I attended committee D meetings as an observer because I am interested in documenting how the process plays out, and in specific understanding the role of the Debian developers (Mako Hill, Don Armstrong, and Branden Robinson are the Debian participants thus far). And hope to say more as this all unfolds in the next year.

Here are a few pictures from the conference. I did not take many because I was actually shooting video (which I have never really done) but have yet to figure out how to get it off my video camera and onto my computer! As soon as I do, I will post some clips of the talk too.

If you are in the area and are into the law of free software, then this conference is for you. It is free and open to all, but make sure to register by the 12th