February 25, 2006

Say What? Free Software, You Can’t Just Give it Away

Category: F/OSS,Hackers,IP Law,Politics — @ 3:08 pm

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.


  1. After reading the short introduction to your paper I think that what struck me was the mistaken conflation of free software and open source. I think it is vital to realise that you are talking about two distinct and contradictory groups. For a start the underlying discourses and justificatory schema that they draw upon is very different (i.e an ethical discourse vs a technical discourse). To call them F/OSS requires the unification of what might be better treated separately – especially if you are going to start talking about a counter-hegemonic or critical movement (i.e. something that open-source is very different from – at least within their own discursive practices – see Torvalds for example). At the very least you should explain why and how you are bracketing out the difference in your paper.

    I thought you might like to take a look at this paper I wrote (1) which tries to unpick the distinctions which are driven by very different agendas.

    You need only look at the language difference between Free Software (2) and Open Source (3) to see that there is something interesting and compelling in their discursive constructions.



    Refs (in case those above fail to work):

    (1) http://opensource.mit.edu/papers/berry1.pdf
    (2) http://www.zmag.org/content/showarticle.cfm?SectionID=13&ItemID=9350
    (3) http://www.oreillynet.com/pub/wlg/1840

    Comment by David — February 26, 2006 @ 9:33 am

  2. Hello David,

    Thanks for the comment: I could not agree with you more. There are indeed many very interesting and important differences between free and open source, which became the magnet that attracted me to pursue this topic back in 1997/1998. I used to follow this stuff as a “hobby” and then when the swtich from free to open occured, I couldn’t hold back anymore and wrote a masters thesis (http://healthhacker.org/biella/masterslongversion.html) that unpacked some of the cultural meanings and consequences of the shift.

    And in the body of this paper, I do disaggregate the two, though you are right, this is nowhere reflected in the introduction, which is where it should be. And makes me think that I should just post the whole paper because comments like these are what I need! I will do so after I get back from the conference.

    But I will post below what I think is one of the interesting and somewhat ironic elements of open source as it relates to fueling the ethics of free software.

    And thanks for the links. I look forward to reading them and making additions.


    While Stallman was not inherently opposed to the presence of free software in the market (he repeatedly stated that he hoped programmers would be paid for their labor), his main concern was that the contributions of the Free Software Foundation and the GNU project, together with their ethical underpinnings, continue to be acknowledged as Linux became a high-profile product. While arguing with other developers on the Linux Kernel mailing list about the need to include the name GNU within Linux (since the OS, after all included many pieces of GNU software), Stallman again offered a dire prognosis about the future of free software: “If this thread is annoying, please imagine what it is like to see an idealistic project stymied and made ineffective, because people don’t usually give it the credit for what it has done. If you’re an idealist like me, that can ruin your whole decade.”1

    At this time, it truly did seem as if the idealism of free software was perhaps a thing of the past: the corporate discourse of technical efficiency and market power a Goliath in comparison to the eccentric “David” singing songs about the ethics of information freedom (“Join us now and share the software; You’ll be free, hackers, you’ll be free. Hoarders may get piles of money, That is true, hackers, that is true. But they cannot help their neighbors; That’s not good, hackers, that’s not good”). At this point in time, I also wondered how the message coming out of a small nonprofit in Cambridge, Massachusetts, could ever compete with corporate behemoths like IBM who had million-dollar advertising campaigns at their disposal. The average American was coming to learn about open source through slick advertising campaigns (in the form of print ads, television commercials, and even spray painted images on city streets) that only corporate giants like IBM could afford.

    The corporate acceptance of Linux and open source, however, did not eliminate the idealistic elements of free software production. In fact, the popularity of Linux among hackers, the ability of hundreds and eventually thousands of programmers to contribute to it (and other software projects), and its success in the commercial sphere had the effect of rendering visible the underlying ethics of free software to a much larger audience than the FSF and Richard Stallman had ever reached.2 By making Linux and open source a household name, many more people learned not just about open source but also the ethical foundations—sharing, freedom, and collaboration—of free software production. In other words, historical outcomes proved to be more unpredictable, complex, and thus, ironic than one could ever imagine.

    As Linux and open source gained more visibility in the public sphere, corporations were not the only entities and actors to learn about and embrace this technological realm. Influential academic lawyers like James Boyle, Lawrence Lessig, and Yochai Benkler, who were concerned with diminishing public access to knowledge, were studying the dynamics of F/OSS to use it as an example to argue persuasively for alternatives and moderation in IP law. Debian, the free software project with the largest number of volunteers, had by this time committed to the idea of free software, a morality enshrined in their Social Contract and the Debian Free Software Guidelines. By 1998, people inspired by the GPL had created similar licenses for other forms of content. In 2002 Lawrence Lessig would eventually institutionalize this transfer in the Creative Commons, a media-savvy nonprofit that now provides a panoply of alternative licenses to copyright and is launching new offices around the world. [...]

    Comment by sato — February 26, 2006 @ 9:54 am

  3. Biella,

    Scott and I are working on another response to the issue of co-optation and how ‘open source’ is facilitating that. Scott is going to post it very soon (out here and on our blog as well).


    Comment by Samir Chopra — March 8, 2006 @ 6:21 am

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