Open Source vs. “Free Culture”: a colloquy

The following exchanges were culled from a recent, interesting series of threads at the Wikipediocracy Forum.

 

Peter Damian:

Sometimes the way you describe a thing can be a more powerful comment on it, than any actual comment. The tech industry talks about ‘Web 2.0’, which sounds incredible and futuristic and technologically advanced, as well as ‘cool’ and modern. But let’s call it what it really is, namely ‘The Exploitation Economy’.

Similarly, ‘user-generated culture’ should be ‘DIY culture’. And don’t talk about the tech industry, or Google or YouTube, call it ‘The Content Theft Industry’. The Berkman Centre and other academic institutions funded by the Content Theft Industry are really “The Pirate Propaganda Machine” or “Thieves posing as revolutionaries”. Blogs and other media such as Slashdot and the rest, which support thieves and their enablers, should be called “The Anti-Copyright Press” or “Digital parasites”. Their political lobbying machine is “The U.S. Pirate Party”. What should we call Wikipedia? The DIY encyclopedia posing as a Pirate Propaganda Machine? Mixed in with a bit of Exploitation Economy?

…And of course “opensource” is a software concept, whereas ‘free culture’ is about, well, culture. I can see how opensource works for software, because it’s useful to adapt someone else’s code to do stuff that the original code wouldn’t. That’s why RMS got mad when he found that the guy wouldn’t share the Xerox printer code. Or rather, he got mad because the guy had promised not to give the code away. He had ‘betrayed the whole world’.

It’s somewhat different with culture because, while certain ideas and themes are shared between writers, a writer (and probably an artist) feels that the vision of the whole work is something that they created, and should not be stolen. Art and writing is personal in a way that computing is not. Also, it is impossible to build a whole software system on your own, containing millions of lines of code. Whereas someone can write ‘War and Peace’.

One of the problems of Wikipedia, I argue, is that they tried to treat software and culture the same. You write an article as though you were writing code, you fix it as though you are fixing bugs etc etc. The analogy completely collapses at this point.

 

Kelly Martin: 

I’m a long-term open source and free culture supporter, but that doesn’t extend to violating copyright. Fundamentally it’s up to the creator to decide under what terms, if any, they will release their creations, and the rest of us are obliged to respect that.

A large part of the problem is that writing code is not the same as writing prose, writing poetry, or making graphic art. Code is a useful object, and as such really ought to be covered by the patent system rather than the copyright system (although there are problems with that too, given how absurd the patent system has become, but that’s a separate issue). But, as you note, the transfer of concepts developed to deal with the misapplication of copyright to computer software back to cultural content has created a whole new set of problems.

It’s also true that Big Media is struggling desperately to maintain its stranglehold over distribution channels and is using copyright law and the bogeyman of piracy as a means to do that.

 

Greybeard: 

First, I think a number of ideas are being conflated, most importantly “Open Source Software” (OSS), the various Pirate Party/pro-copying/anti-copyright agitators out there, the “Free Culture” movement, and various “DIY”/”Maker”/”Homebrew” and other movements of varying size and importance, as well as “crowdsourcing” in its infinite variations. While some of these are linked at the edges, they mostly have quite difference origins, and contain very distinct motivations.

I learned a good deal of what I know about software engineering from reading the source code to the UNIX(tm) operating system in the 1970s. The idea of an operating environment (including all the tools, compilers, games, etc) that included the source code as an integral piece was radical at the time. But Unix wasn’t “open source” — indeed, it was carefully licensed by Bell Labs, and later AT&T and others. Also, in contrast to its primary “competitor” of the time, the DEC operating systems of RSTS/E and later VAX/VMS, Unix was “unsupported” — there was nowhere to call for help.

A community sprang up pretty quickly, providing mutual support in a barn-raising kind of way, sharing modifications that we all seemed to make to the tty (terminal) drivers, the printer drivers, the simplistic text editor, and porting important packages from other systems like SPSS (a statistical package), and other giant piles of old FORTRAN. In ways that were soon repeated in the nascent hobby/personal computer market, we helped each other because that was the only way to get things done. Duke News, which became USENET, came into existence in about 1980 or 1981, and rose with the development of better and faster modems, allowing more sharing between the in-group. While there were lots of discussions about AT&T licensing policy, no one questioned their rights to their code, and people pretty much abided by it.

The story of Richard Stallman is pretty well known, but it bears repeating that Richard was a **product** of this environment, not the creator of it. RMS popularized and politicized a certain view of code sharing that contained equal parts of the core culture of that Unix community and parts of his own, zealous ideology. I met with RMS many times and came to the conclusion that he was motivated more by his political ideology than a desire to produce and share good code. I was not the only one. Another community had sprung up on the West Coast. RMS was part and parcel of the MIT/Harvard/Yale/Princeton East Coast computer community, tightly entrenched with the computer manufacturers of the day, all of whom where east-coast based. The Berkeley community gelled quite differently, and members of it like Eric Raymond and Kirk McKusick later rose to become its spokesmen (Stanford is an interesting outlyer, which I don’t have time to cover). The Berkeley license isn’t really a response to RMS’s “Copyleft”, but a truer representation of the ethos of the Unix community at the time.

Stallman and his FSF have resolutely tried to make “Open Source” and “Free Software” synonymous, but in fact have succeeded only in muddying the water and causing confusion. Stallman’s anti-capitalist, anti-business bent continues to capture the imaginations of new generations of newbie hackers, lacking as they do any real understanding of the real underlying issues of code-sharing, community, and the lifecycle of software development. In the real world, outside of the GNU Compiler suite, FSF continues to be more of a political movement than a software force. This is why Stallman hates Linus Torvalds and Linux, because it is a pragmatic, code-driven community, not a political movement.

This also distinguishes the center of gravity of the OSS community (which includes Linux, Apache, Mozilla/Firefox, and numerous other non-FSF projects) from the “Pirate Party” pro-copying people, though this movement also reaches back into the early days of personal computing.

Early PC (and proto-PC) software was (famously) copied pretty widely. Bill Gates authored an early and widely-distributed rant on the topic of his MS-BASIC interpreter being shared around homebrew computer circles. This was partly due to technical limitations (“bits are bits” as the saying goes, and generally if you can run a program you can copy it), and partly due to the difference between the mini-computer world in which Unix lived and the homebrew and later commercial PC world. Software was no longer a corporate purchase (costing hundreds or thousands of 1980 dollars), but a personal one, and people (rightly or wrongly) felt they should be able to use and share their purchases. But even more so, one after another ham-handed attempts were made at locking down software, often with hardware add-ons (dongles) and various other Rube Goldberg botches. They uniformly failed, and often prevented validly-owned software from being used. Computer programmers being who they are, these systems were quickly bypassed, and from the very attempts at enforcing computer software copyrights sprung the cat-and-mouse game of defeating those efforts.

Then came the music industry’s (perceived as) heavy-handed shut-down of the popular Napster, engendering distributed data-sharing schemes culminating in Bit Torrent and the like, and DVD encryption and its hack (due to boneheaded engineering on the part of its creators), the MPAA lawsuits, etc, etc. While on the one hand one can understand the desire of an industry to prevent the unlawful copying of its products, it did so in such a way as to alienate many of its consumers, while failing to offer an alternative that matched up with the rapidly-changing world of digital music and video. The film and music industry were (are) truly dinosaurs, apparently lacking the ability to create a new model that distributes entertainment online to digital devices while maintaining a viable business model for artists and performers (as well as themselves).

The so-called “Pirate Party” schtick is largely in reaction to this, the slow death of the cumbersome and unloved music and film industry, and has little or nothing to do with the Open Source community. The “Free Culture” movement is sort of the academic and legal distant cousin of the Pirate Party. While it rose in parallel to the Internet, its origin is more in the Sonny Bono Copyright Extension Act of 1998, which should have been called the “Mickey Mouse Protection Act”. Its timing had much more to do with the impending expiry of copyrights on early Disney works than on the nascent Internet media wars. Harvard professor Larry Lessig appointed himself the leader of this movement and wrote several books on it, ultimately creating the “Creative Commons” licenses. Again, however, the primary motivation for CC licenses was to address (arguable) over-reach by corporate copyright owners in a wide variety of “fair use” circumstances.

This is where, in a longer article, I would go off onto a diatribe about the history of copyrights, which go back only to the mid 17th century, and have their origins more in censorship than in promotion of commerce in “intellectual property” (a term and concept not even 200 years old). But suffice it to say that while there may be strong arguments about manipulation of the copyright laws by entrenched corporate (rather than creative) interests, Larry’s books haven’t really changed much, except to create even further confusion and opportunity for argument.

The DIY community has yet another set of progenitors. Some will draw a line back to Punk Rock or even the Arts and Crafts movement, but that goes too far. The specific term “DIY” (in its current usage) arises independently of OSS or Free Culture or Copyright wars in the mid 1990s from the (fine) art community to describe a more rough-and-ready trend emerging in fine art and sculpture at that time in reaction to (the perception of) increasing commodification and uniformity among more mainstream fine art of that time. Important East and West Coast curated art shows under the “DIY” label emerged in the late 1990s. Only much later did the “Craft” movement merge or co-opt the “DIY” term, and begin to confuse (unify?) it with the so-called “Maker” movement, which is basically “Craft” with “Tech”.

I’m somewhat running out of steam here, but let me summarize:

1) Open Source emerged from a set of circumstances in the 1970s and 1980s, and is primarily a tech-driven and practical communitarian focus on real-world software;

2) Free Software is a political movement driven by (mostly) anti-business or anti-corporate forces. It is much smaller and narrower than OSS;

3) Pirate Party and pro-copying “movements” (such as they are) are a reaction to the death throes of the music and film industries as they fail to adapt to digital media and communications. While they share some anti-business political rhetoric with the Free Software people, in reality this is likely to be a more temporary phenomenon;

4) Free Culture and Creative Commons activities are a (more) legitimate reaction to over-reach by corporate copyright interests, but are currently quite ineffective, except at muddying the waters;

5) The DIY movement is (now) an amalgam of the rump of a short-lived fine-arts movement of the 1990s with the Craft and Maker communities. While arguably also in reaction to corporatism and mass production, the underlying ethos is distinct.

(I didn’t have time to talk about “crowdsourcing” as a concept, but this is also distinct, with a different history.)

I have tried, but obviously not completely succeeded, at making the above historical precis value-neutral. I think there are many interesting questions about the interplay of communitarian values, sharing, corporatism, copyright, intellectual property, and so forth, but it does no one any good to lump things together — on either side of the argument. Ownership of and commerce in intellectual property is a comparatively new idea in society, and one that almost everyone agrees must undergo some kind of change in the next 50-100 years.

To briefly get to Wikipedia, I think you might be able to make an argument that it is an efficient machine for laundering copyrighted materials unto (apparently) less copyrighted ones (by using “crowdsourcing” and the mob), but it is only one part of an entire ecosystem that enables that shift. But I think it would be more accurate that Wikipedia attracts the kind of people who revel in the anti-business ethos, and abrogation of intellectual property rights in a side-effect.

Peter Damian: 

1. Opensource movement and free software movement. I don’t believe there is any real significant difference between these two. Stallman hates the OS movement, and indeed when I interviewed him I had to agree not to conflate his views on free software with OS. The reality is that the OS guys had some meeting where they didn’t invite Stallman because of his outspoken and radical anti-corporate opinions. Thereafter they parted company. So, I don’t see any fundamental difference in ideology – they both believe in the ‘four freedoms’. It’s just the difference between those who dress as 1960s hippies, and those who dress up as 1990s brogrammers and skiboarding types. No fundamental difference.

2. Pirate movement. No such thing. There are the actual pirates who make big money out of piracy, and then there are the useful idiots belonging mostly to the group above (i.e. FS and OS) who accept the piracy arguments. There’s a middle group of lobbyists who aren’t actually pirates, but who profit from the apparatus used for piracy. E.g. see the speech herehttp://www.politechbot.com/p-04000.html by Gary Shapiro of the ‘Consumer Electronics Association’, which lobbies for manufacturers of hardware and software devices used for ‘copying’. I.e. it is big business – really big and powerful business – making out there is some kind of ideology at stake.

3. Free Culture and Creative Commons and so on. This is just intellectual types such as Larry Lessig who make apparently reasonable comments about ways of rewarding content creators better. But in reality when they come out in public they are not defending content creators at all. For example, Lessig spoke out in favour of Napster. He always takes a dim view when they attempt to block unauthorised distribution of their work.

4. Crowdsourcing. This is simply an ideology – or rather a pseudoscience – that is wheeled out to justify abuse of content creators’ rights. The argument is that you don’t really need content creators at all. Major works can be built by individual creators working as a community, each putting in small amount of work to build a great monument. Like the termites building the termite nest. No termite has a vision of the completed nest. It simply follows a rule like ‘if you bump into a twig, then if you aren’t carrying a twig, pick it up, otherwise drop the twig you are carrying next to it’. There is no Byronic romantic artist hero who creates great works. The model for the content creator is not Beethoven, but rather the banjo player in Deliverance, who swaps licks with other banjo players. 

5. Wikipedians. My research into the origins of Wikipedia strongly suggest that it was built by those from group 1 above, i.e. people inspired by the so-called achievement of Linux. There are many quotes from the early archives which mention ‘the cathedral and the bazaar’ and the Linux kernel and so forth. There is no mention of ‘Free culture’ because that came later in the mid-2000s. Note the term ‘crowdsourcing’ also originated in this later period. I can’t find the link now, but I remember Jeff Howe edited the Wikipedia article on crowdsourcing to point out that he coined the term. So even the Wikipedia article on crowdsourcing was not crowdsourced. The later influx of Wikipedians from Slashdot later in 2001 was of primarily OS and FS types. These types also dominated, and continue to dominate, the mailing lists.

Kelly Martin: 

 

Peter Damian:

My view, as I said, is that the core supporters of Wikipedia, and Jimmy himself, are also strongly aligned to the ‘Free Culture’ movement. I have also called the Free Culture movement the ‘Piracy Movement’, but that is just a label. By the ‘Free Culture’ I mean the movement and the ideology that attempts to justify stealing of intellectual property. By ‘stealing’ I do not necessarily mean any criminal offence, but simply taking what is not rightfully yours. Intellectual property is property, and therefore not rightfully any other persons, unless freely traded by an appropriate contract or license.

It’s pretty simple, and by no means an extreme view. Artists and creators need to live, just like any other workers.

Short version: intellectual property is property.

Greybeard:

Allow me to take the contrary position: intellectual property is not property. For most of the history of mankind, insofar as a sense of individual ownership has existed, property (from the Latinproprius) has been something owned and controlled by an individual or entity, as opposed to communis, or commonly-held things. Dating back to Ceasar’s Rome, “property” meant what we now call “real property” — real estate (primarily) and certain material goods.

It was, for those several thousand years, an essential aspect of property that taking it deprived the previous holder of its use. We see the interesting and odd echoes of this is modern adverse possession laws — if you occupy a property long enough (depriving the owner of its use), and the owner fails to re-possess the property, then it can become the property of the occupier.

So, as is tiresomely iterated by the free culture crowd, if I take your car or occupy your house, I am depriving you of the use of your car or house. Not so with intellectual property. My copying of it does not deprive you of your copy. My copying (and/or subsequent copying) may deprive you of income from the property, but it does not dispossess you of the property.

Indeed, if I write a book or paint a painting or compose a tune, and then place that book on my shelf, hang the painting on my wall, or hum my tune in the shower, no one can dispossess me of that property unless they break into my home and purloin the book, painting, or sheet music. Indeed, if it is intrinsic to my work that it is carved on heavy stone tablets (or depicted using impossible-to-copy brushstrokes in oil paint on canvas), then no realistic “copying” of the work can take place. The work is mine, and I can sell it to someone, whereupon it is no longer mine, it is theirs, and I don’t have it anymore.

The advent of printing presses, photography, and the digital versions of these things changed this notion. Societies decided that certain books and pictures would, by law, be protected from copying so as to ensure an income stream to the producers of those books and pictures, thereby encouraging them to continue producing and distributing them. Hence “Copyright”, the right to copy. (Similarly, patent law was created, to encourage what would otherwise have been industrial secrets to be disclosed, theoretically advancing society’s sciences and engineering, while providing (limited) compensation for the inventor.)

But a right to copy something does not imply that the thing being copied is property. One cannot copyright an idea, only the expression of it. One’s right to deny copying is limited in the case that the copy is used non-commercially, for parody, or in certain other circumstances. So intellectual property acts in almost all ways differently from other kinds of property. Certainly one can buy and sell various rights to copy, but one can buy and sell many services that are not property.

In short, intellectual property is not property, it is closer to the monetization of a service. In some circumstances ideas can be rendered into physical form and then sold, but that’s just regular property. Society has good reasons for protecting the rights of creators to profit from their creations, but those laws must evolve with the progress of man.

Indeed they do. And many of them lived and thrived before the era of copyright: Michaelangelo, Da Vinci, Aristotle, Plato. Well, OK, maybe not Aristotle so much.

A late friend of mine witnessed an interesting thing: she was on the beach in the south of France, and as it happened Picasso was there as well. Some nearby people were remarking on it, and wanted to approach the painter, but were concerned about his notorious temper when his privacy was breached. But anything with Picasso’s signature on it, by then, was incredibly valuable, so they sent over their small child, with a pen and pad, asking for an autograph. Picasso did not get angry, but winked at the boy, and asked him to turn around, using the pen to autograph the boy’s bare back. The parents were faced with flaying their child to monetize this asset, or consigning themselves to its impermanence.

One of the interesting phenomena in the digital age has been the return to live performances by many musicians. In an era when recordings have less and less value, the value of a live performance has been climbing rapidly. Photography faces similar challenges, and it is interesting to see much contemporary photography rendered in archaic media (tin-types, ambrotypes, and the like), or impossibly huge formats, also essentially impossible to reproduce.

In many ways the would of the Internet has given opportunities to artists, musicians, and authors that did not exist before. I recently finished the science-fiction trilogy “Wool”, a self-published work that had been rejected by many, many publishers, but which (like “Fifty Shades of Grey”, I’m told) gained a broad following once brought directly to the market as an e-book. (I bought a paper copy of the book, so that I actually “own” a copy, but that’s just me.) Suggesting that we need to continue to provide wood-paneled offices and limos to the middle-management of Harper-Collins, Sony-BMI, or Fox Searchlight is not consistent with ensuring that artists earn a living.

 

Image credit: Flickr/Olivier Bruchez – licenced under Creative Commons Attribution-ShareAlike 2.0