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Law & Internet Cultures :: Kathy Bowrey

:: Chapter Four: Linux is a registered trademark of Linus Torvalds

Free software and open source communities characterise themselves as fostering different kinds of social and economic relations to proprietary corporations who enforce strong IP rights.

What is new about the “freedom” that is advocated?
Is law capable of supporting new or different kinds of property relations?

Free software and open source technicians (FOSS) have no membership scheme as such, and no overarching public administration at all. They stress the value of openness, programming freedom, choice and a level playing field, compared to the terms of participation controlled by the proprietary software world. So how do they exercise significant power? And who are the “they” with power? Is it the movement “leaders”, their lawyers? Their acolytes? The community at large? How is power exercised, controlled and limited?We are interested in exploring the nature of the private power that informs technical forms of law. We have seen that the IETF presents as an organization with formally constituted procedures and policies that structure who and how decisions are made, remade and documented. There is an administrative backdrop or constitutional framework to evaluate, in considering the question of their power over standard setting. But what of technical communities that have no such formal or public administration that governs member participation?

There are two conventional starting points for studying free software and open source:

* communities, which usually focuses on notable spokespeople for the movements and deconstructing the ideology behind statements made;and
* licenses, the specific legal terms and conditions that regulate access to and use of code.Communities are usually demarcated into their respective camps, stressing ideological differences revolving around the notion of freedom and Commons-based peer production.

But the emphasis is not on the formal legal arrangements that provide incentives to create, in the terms of legal and economic academic explanations of commons-based production, but on ideological accounts of community spirit. Here the various definitions of freedom within the community itself matter most. FOSS freedoms stress difference from the restrictive kinds of social and economic relations that personify proprietary corporations who enforce strong IP rights. But freedom is also articulated in various models of licensing, which of course, depends upon play with the rights the law permits. The licenses provide a formal site or structure to help analyse and differentiate the communities, however the extent to which FOSS claims to embody freer kinds of legal relations suggests one should not read too much into the formal legal expression of rights. The extent to which law is capable of supporting new or different kinds of property relations is an important question we will need to consider. Important ideological distinctions are claimed and are clearly important, however from a programming perspective the pragmatics of the workplace and the task at hand may often involve transgressing the whole gamut of IP licensing: patents, copyright, trade marks. Code of any complexity may be already impacted by a differing array of IP conditions. There are specific proprietary, free software and open source terms of use for all of these IP rights, and the terms interrelate. This adds to the complexity of the area and it is not really possible to understand free software, open source or proprietary programming environments without understanding at least the basics of all the IP rights and at least some of the license permutations.

The objective of this class is to:

explore the rhetoric of FOSS. How is language used to create group cohesion, collective identity and culture?
consider the disciplinary power of the culture these communities generate, outside of recourse to formal uses of law;
consider how mainstream corporate adoption of open source disrupts the informal mechanism of power within the movement;
explore the intersection of these communities with formal legal powers and processes.

Ideology wars: why language matters

The chapter begins with a reference to George Orwell’s 1984. There were three primary reasons for this choice.

Firstly, from early on spokespersons for Free Software Movement (FSF) such as Richard Stallman, and for Open Source such as Eric Raymond, began to police the use of language in the respective movements they, with

others founded. In public speaking about FOSS there are also a lot of assertions by the “leaders” of what copyright lawyers might recognise as moral rights like claims- of attribution and integrity in relation to ownership of correct usage of terms, but positions defended or supported change over time. There is a lot of discussion of terminology and the correct use of it by leaders, to help define the values of freedom affiliated with the movements. See for example, Free Software Association, Words to avoid.

The FSF also provides a useful categorisation of what it considers to be free or non-free software.

You should familiarise yourself with these distinctions, so that you become familiar with the possible meanings of the term “free”.

See also Eric Raymond’s page on Why "Free" Software is too Ambiguous. What Does "Free" Mean, Anyway? and Terminology Wars: A Web Content Analysis. He tracks “false positives” and “noise” in the usage of the terminology. His conclusions are:

-Among software developers and in the technology trade press, use of the term "open source" dominates use of the term "free software" by 95%-5% or more.
-On the general Web, the ratio is 80%-20% or more.
-The gratis/libre ambiguity in the term "free software" produces about an 80% false-positive rate in Web searches.
-Use of the term "free software" is in long-term decline, and older or obsolete pages form a larger part of its share than for "open source".

The clear message is that six more years has done nothing to resolve the ambiguity of the phrase "free software".”

Does frequency in usage and misuse of the terminology matter?
Why does it matter so much, to some?

Secondly, there is a history of using Orwell’s 1984 to explore the cultural implications of personal computers. For example, see the original advertising campaign for the Apple Macintosh, which ran during the 1984 SuperBowl in the US. The voice-over announces, "On January 24th, Apple Computer will introduce the Macintosh. And you'll see why 1984 won't be like "1984." Ted Friedman, from Georgia State University argues that early PC firms had avoided science fiction in promoting their products because when Americans thought of computers and science fiction, they imagined HAL of 2001: A Space Odyssey. But in this campaign “there's the bad technology - centralized, authoritarian - which crushes the human spirit and controls peoples' minds. Read, IBM. But we can be liberated from that bad technology by the good technology - independent, individualized - of the Mac.” The Macintosh of course ran on a proprietary operating system. However the theme of liberating technology and independence from centralized authority, as suggested in this ad campaign, is a strong, recurring theme of FOSS.

The third reason I chose to draw on the particular war and language focus of 1984 relates to the way the definition of “us” in free software and open source often proceeds in relation to “them”. By “them" I primarily mean the proprietary corporations.

As Stallman says, “We don't think of the Open Source movement as an enemy. The enemy is proprietary software.” War and attack references are not uncommon.

With FOSS the proprietary enemy means Microsoft in particular. The Halloween documents is a good place to begin to study this dynamic. See also the OSI analysis of Microsoft “Shared source”. However disputes with Sun Microsystems over Java, discussed in the Chapter demonstrate a similar dynamic.

Why I am interested in the policing of language is that it is a primary form of regulation in a community. Language is formative of a sense of identity, insiders and Otherness. So what is it that marks some as the outsiders in these debates?

It is all set out in licenses, but as noted above, it is about much more than licenses.

Show me the code!

There are many books about the development of what is commonly described as an “alternative” programming such as Glynn Moody, The Rebel Code: Inside Linux and the Open Source Revolution, (Penguin Press, 2001) or Peter Wayner’s, Free for all: How Linux and the Free Software?Movement Undercut the High-Tech Titans. However what writers commonly stress is not so much the setting off in an “alternative” legal direction by certain programmers, but rather their perseverance to maintain co-operation that had marked most of the 70s, and resist private conditions of ownership of code that gradually encroached on the programming environment from the 80s onwards. The extent to which IP law is to blame here is not well studied. However it is clear that from the mid 80s onwards, when Stallman first started on the GNU Project and the FSF, that IP rights were going to matter a lot.

There is also a debate surrounding the break-up of AT&T leading to the free development of Berkeley UNIX as “free” See Marshall Kirk McKusick, Twenty Years of Berkeley Unix. From AT&T-Owned to Freely Redistributable”. Though the essays are brief, the entire collection in

Open Sources: Voices from the Open Source Revolution is useful.

Stallman’s reflections on Lessig’s code are interesting here. Stallman and Bradley Kuhn argue in Freedom or Power?:

“Proprietary software is an exercise of power. Copyright law today grants software developers that power, so they and only they choose the rules to impose on everyone else--a relatively few people make the basic software decisions for everyone, typically by denying their freedom. When users lack the freedoms that define Free Software, they can't tell what the software is doing, can't check for back doors, can't monitor possible viruses and worms, can't find out what personal information is being reported (or stop the reports, even if they do find out). If it breaks, they can't fix it; they have to wait for the developer to exercise its power to do so. If it simply isn't quite what they need, they are stuck with it. They can't help each other improve it.

Proprietary software developers are often businesses. We in the Free Software Movement are not opposed to business, but we have seen what happens when a software business has the "freedom" to impose arbitrary rules on the users of software. Microsoft is an egregious example of how denying users' freedoms can lead to direct harm, but it is not the only example. Even when there is no monopoly, proprietary software harms society. A choice of masters is not freedom.

…If code is law, as Professor Lawrence Lessig .. has stated, then the real question we face is: who should control the code you use--you, or an elite few? We believe you are entitled to control the software you use, and giving you that control is the goal of Free Software…

Current copyright law places us in the position of power over users of our code, whether we like it or not. The ethical response to this situation is to proclaim freedom for each user, just as the Bill of Rights was supposed to exercise government power by guaranteeing each citizen's freedoms. That is what the GNU GPL is for: it puts you in control of your usage of the software, while protecting you from others who would like to take control of your decisions.”

The Free Software Foundation definition stresses:

"Free software'' is a matter of liberty, not price. To understand the concept, you should think of "free'' as in "free speech,'' not as in "free beer.'' This is the foundation of a social movement.

You can download Sam William’s book Free as in Freedom. Richard Stallman's Crusade for Free Software.

This “free speech” emphasis is itself a subject of much debate. It is explored by Matthias Klang, Free software and open source: The freedom debate and its consequences

Stefan Merten from Oekenux in an interview with Joanne Richardson Free Software & GPL Society stresses freedom somewhat differently to Stallman. This approach is less interested to the free speech rhetoric, and more interested in analyzing the form of production :

“With the term "GPL Society" we named a society based on the principles of production of Free Software. These principles are:

* self-unfolding as the main motivation for production,
* irrelevance of exchange value, so the focus is on the use value,
* free cooperation between people,
* international teams.”

Note also Martin Hardie FOSS and the ‘Crisis’ : Foreigner in a Free Land?

And David Berry, The Commons As An Idea - Ideas As A Commons. There is also a large, diverse collection of paper at Free/Open Source Community Online Papers.

Merten notes :

“Free Software and Open Source Software are not two movements, but a single movement with two factions, and as far as I can see the distinction plays a major role mostly in the more ideological discussions between members of the two factions. They are collaborating on projects, and sometimes unite, for instance, when it is a question of defending against the attacks of Micro$oft.

And, no, "Open Source" is not an accurate characterization of this faction, since their focus has been making Free Software compatible with business people's thinking. A more correct name would have been "Free Software for Business" - or something like that.”

He stresses the practical aspect of freedom inherent in code’s production and use that is often overlooked in contemporary use of open source, especially in its corporate manifestations. We will pick up on this issue below.

Eric Raymond’s response to the Kuhn and Stallman statement of a philosophy of freedom was:

“Stallman and Kuhn want to be able to make decisions that affect other developers more than themselves. By the definition they themselves have proposed, they want power.”

The OSI definition includes different descriptions of similar “freedoms” to FSF, maintaining an emphasis on access to the source code. There is also the FSF own notes on the differences between free software and open source, Why free software is better than open source. Basically the FSF definition is tighter in terms of what license terms they recognise as free, and it is this power of “approving” licenses that Raymond is suspicious of. I find the Debian Social Contract provides one of the clearest definitions.

The matter of law

Kim Weatherall’s basics of licensing is a good introductory place to start to understand how these licenses work in relation to copyright law and create conditions of “free” access to code and sponsor co-operative development. A more complex political analysis of the variety of licenses can be found at: David Berry A Contribution to a Political Economy of Free Software and Open Source (available soon).

We will consider the cause of “Creative Commons” licenses in Chapter 6, but note that as the FSF rightly acknowledges, “There is literally no specific freedom that all Creative Commons licenses grant”. Though it is a matter we will need to debate, this licensing ‘model’ has a (at least) slightly different genesis and relation to law than that of free software, and of most open source.

How does FOSS relate to IP law?

How are legal processes and the disciplinary power of the State negotiated?

Do the formal legal relations used by open source and free software sit well with traditional intellectual property jurisprudence and the interpretative mechanisms of the State?

Consider the interview with Linus Torvalds in Wired Leader of the Free World and this recent article by David Braue, Linux trademark protection comes at a cost for some, SMH 16 August 2005.

Torvald’s own explanation for the policing of the trade mark is that:

“I (and obviously a lot of other people) do not want to have "Linux" as a name associated with unacceptable (or borderline) behaviour, and it's important that "Linux" doesn't get a name of being associated with scams, cybersquatting, etc.” He goes on to note the trade mark law requires the distinctiveness of the mark be policed, and “I'm required to ask people to acknowledge the trademark. When you use the term "Linux" in official marketing literature etc, you should acknowledge it as a trademark owned by me. Not because I love seeing my name in print, but simply because of the "policing" issue (#2) above.”

The policing of use of the trade mark has now been outsourced to a organization designed for that task. The Linux Mark Institute formed:

"to protect the public and Linux® users of the world from unauthorized and confusing use of the Linux mark and to issue proper licenses to authorized users of the Linux mark." LMI is not designed to generate profits for anyone, which is why Linus Torvalds has given LMI primary sub-license rights for the mark. We work to protect legitimate uses of the LINUX trademark without burdening Linus Torvalds or any one entity with the financial responsibility of protecting the LINUX community's use of the mark.”

Consider the group registering the Linux Trade Mark in Australia, Linux Australia and their Charter.

Why is it a surprise, for some, that the trade mark will be registered in Australia and enforced?
Is this a conservative move? An abuse of “freedom”? A form of community “self”-regulation?
Who are the community gatekeepers, and how do you think they will choose the targets to “out”? How do you get to be one?

Another recent development has been an increase in the advocacy and archiving of “open source patents”. See OSDL Creates Patent Commons Project

The OSDL project is reported to mainly consist of a library and database to aggregate patent pledges made by companies in the past “where intellectual property can be held for the benefit of all of us”.

Are these “alternative” uses of IP rights?

In a speech for the Harvard Journal of Law & Technology Eben Moglen, Legal Counsel for the FSF, runs two ideas together. First, he claims the FSF simply desires:

“a free evolution of technical knowledge. A descent by modification untrammeled by principles that forbid improvement, access and sharing.”

He then goes on to suggest that:

“If you think about it, it sounds rather like a commitment to encourage the diffusion of science and the useful arts by promoting access to knowledge.

In short, the idea of the Free Software Movement is neither hostile to, nor in any sense at cross-purposes with, the 18th century ambition for the improvement of society and the human being through access to knowledge.”

He goes on to cite the US IP power in Article 1 Section 8 of the Constitution, and suggests that,

“just like the founding parents of ours participated in the great 18th century belief in the perfectability of the world and of human life”, we are “the 21st century inheritors of that promise”.

In my own interview, Moglen was much more pragmatic, stressing:

“The goal of the GPL and secondarily the L-GPL is to use pure copyright, in a minimum tool-set guaranteed to exist by the Berne Convention. I am trying to do business everywhere on earth with a single copyright license. The goal of that license is to use only copyright principles and only that that Berne must provide, where it is providing anything at all. So, my assumption is that any Berne member system contains the principle that as to software, in order to copy, make derivative works and redistribute, modify or unmodify software you must have a license of some kind.”

What should we make of the different tales of origins for different audiences?

Moglen also notes the reliance on English translation, and informal mechanisms to enforce the GPL. He says:

“Moreover it is the rare defendant, as I have said in public on many occasions, who actually wants to plead my license and argue that he understands it better than we do about whether he is violating his term.”

He also said that he thought:

“cultural controls were “enormously important and they are of growing importance. I think that that represents not so much private ordering as opposed to legal principle however, as the equally famous distinction between rules and norms".

Does the FSF, through its licenses, exercise “unaccountable” private power?

What is the structure that defines their legal power?

Corporate might and open source

In The Age of Corporate Open Source Enlightenment Paul Ferris considers the mainstream corporate adoption of open source. He concludes:

“adoption of open source software still faces obstacles such as inertia, ignorance, and application availability, but these are shrinking. The recessive climate and growing list of successful adoptions are creating big opportunities for open source software. They give companies compelling reasons to switch paradigms, often realizing unexpected benefits—not the least of which is digital religious freedom.

Corporations are seeing the open source light.”

He then gives a list of success stories.

It is worth comparing this with Sun Microsystem’s Richard P. Gabriel & Ron Goldman Open Source: Beyond the Fairytales. This is a business explanation of the common sense benefits of open source for increasing market share.

There is also journalism like Salon magazine’s How Big Blue fell for Linux and scholarship like David A. Wheeler’s Why Open Source Software / Free Software (OSS/FS, FOSS, or FOSS)? Look at the Numbers!.

This paper’s goal is to show that you should consider using OSS/FS when acquiring software. This paper examines market share, reliability, performance, scalability, security, and total cost of ownership. It also has sections on non-quantitative issues, unnecessary fears, OSS/FS on the desktop, usage reports, governments and OSS/FS, other sites providing related information.

These are all up-beat stories of the benefits of “shifting” to open source.

But what are the costs to the “community”?
Is there really a meeting of hearts and minds going on?
What is the “shift”?

There is now also an organisation devoted to providing legal services to the FOSS community. The Software Freedom Law Center says,

“The FOSS production ecosystem, once dominated by a few small not-for-profit entities and individual contributors, now includes a global array of individuals, not-for-profit entities, and commercial developers and redistributors. In this mixed-model organizational environment, all FOSS developers must have an environment where liability and other legal issues do not impede their important public service work.”

The organization provides legal services in the aid of

- Asset Stewardship
- Licensing
- License Defense and Litigation Support
- Legal Consulting and Lawyer Training

How might the popularity of FOSS disrupt the informal mechanisms of power within the movement, or has the power of the “hood ornaments” always been overstated?
How might the mainstream acceptance of FOSS help? Who will it help?
Do formal legal definitions and powers come to matter more?
You might like to consider this account of the German court’s interpretation on the enforceability of the GPL.
Can any company or programmer afford to be “pure” free software or open source, or non proprietary?
How do you now understand the notion of private power in relation to software licenses?

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