K. Geek programs law

Opensource.org and The Free Software Foundation further distinguished — opensource.org attacks FSF — Richard Stallman explained — FSF's veritable political actions in licensing is contrasted with Stallman's incessant talk of freedom — FSF critiqued — the distinction between the technical and the nontechnical is identified as A Major Problem --FSF attacked by opensource.org, again — opensource.org is called disingenuous by the author.

1. The difference between Sean's experience of the internet and the story of opensource.org is less a difference of philosophical import than simple the difference between experience and marketing. Sean's interest in the history of open source and free software wavers between memories of exclusion and a desire to apply some of these same principles of "giving back" to the structure of Amicas. Sean and Adrian have often considered the possibilities of openness— whether that be the openness of Java and its corporate transparency (even if it remains a proprietary specification) or the more radical openness of the Free Software Foundation. Opensource.org is involved in an attempted de-politicization a model of software development that works only because it is based on the political and ethical sense, however inarticulate, that what keeps it going is openness and trust, not exclusion. In order to understand this relationship in more detail, it is necessary to understand what it means for source to be open, or for software to be free.

2. The discovery of "open source" and the self-creation of its tradition can be understood as a specific response to a very real set of concerns that have only recently become apparent, as a result of the commercialization and growth of the internet. Part of the motivation behind opensource.org is to make explicit that the basic standard technologies of the internet are in fact all developed according to the 'open source' way, and therefore to make it clear that there is a conflict between these 'standards' (and the process of setting them) and those of any given corporation that might also create similar technologies for networking and sharing information. There is actually only one corporation at issue here—Microsoft— even if it is always treated as representative of corporate behavior in general[1]. Opensource.org recognizes that there is in fact a significant threat that the internet itself will become the object of a corporate battle; that it will "balkanize" [2] as the basic technologies, tools and protocols are replaced by proprietary technologies .

3. Opensource.org represents this conflict as a techical and economic one. They insist that what is truly great about 'open source' is that it is a better software development model. If 'scale and convention' has shown anything, it should be that standards are never just a techo-economic issue, but already a political one. Opensource.org represents the issue as a technical one because its members understand that the language of politics and rights is, for reasons that are much larger than the world of software development, incommensurable with the language of econommic efficiency and technical superiority in the context of decision making. To oppose corporate ownership of software by asserting a political principle (as in the case of Richard Stallman's political consistency) is to concede the economic and technical issue (insisting on politics does not allow you to say: "it works"). But the alternative they represent is to engage in all kinds of bordering, excluding and defining— actvities anathema to both the spirit of openness and to the actually existing openess of the IETF, or any of the software projects they claim to represent— in order to offer up "open source", the entire set of programmers who contribute to free software and even openness itself, as a better model of economic efficiency and the best bet for technical superiority in a wholly corporate world into which they throw themselves with the giddy fanaticism of converts.

4. Nonetheless we have already seen that there are politics lurking in the rhetoric and the actions of opensource.org, leaving them looking like little more than a self-righteous version of Microsoft, a disingenuous coup in the name of an openness it does not posess. The "user" is constantly referenced as the beneficiary of this unpolitical revolution, but it is a particular and highly skilled user at issue, namely, the corporate user. Of course, this can always be sold as a kind of VooDoo Politics, what's good for corporations is good for You, after all, Corporations are People Too. But the disingenuousnous of this group is deeper than cynicism can reach, and more dangerous. As we will see thanks to the hyperbolic writings of Larry Lessig {Section L below}, this disingenuousnes risks the very foundations of politics, of the very possibility of political participation, which has become the very intersection of law— in its local, national, and international forms, especially the relationship between contract law and intellectual property law— and standards conceived of as implemented standards, standards that work, that is, the software and protocols that the internet consists of. At stake is the relationship between sharing knowledge, and reconceiveing ownership as a contract relationship that sets the terms of this sharing.

"The Last True Hacker," or the difference between political speech and political action

5. Richard Stallman, of course, is the hero of Free Software. His place in the pantheon secured [3], Stallman's politics remain the kind of outspoken consistency and contrariness that typically populate Hollywood movies. Stallman is pure nerd. His apparent hagiographer,Steven Levy is less charitable: "[Stallman] recognized that his personality was unyielding to the give-and-take of common human interaction." But this betrays the story Levy himself tells of Stallman, in which the MIT AI lab functions as a kind of eden, where people "sort of loved each other" but ended in the early eighties with a protracted and particularly "unyielding" battle between Richard Greenblatt and Symbolics Inc., over the commercialization of Greenblatt's LISP Machine. In this story, Stallman is wracked by hatred of Symbolics for its dessication of AI lab personnel. Stallman, Rambo-like, engages a one-man vendetta against Symbolics, reverse engineering their code and creating functionally equivalent but structurally different code to give to Greenblatt's company. Whether this story of industrial espionage is true or not, it should be. At the end of Levy's book it is the Last Great Hack, admired because one man took on an army of programmers and won. At the origin of Stallman's Free Software Foundation, therefore, instead of the naive consistent purity of speech, there must instead be a political education— an experience— of the way the corporate world works, the way actually-existing capitalism humiliates give and take in favor of fair trading, because without going through the market and the legal system, Stallman's political stance would be what it is often accused of: idealism.

6. Stallman is known principally for having begun many of the major components of what is now call Linux. The GNU operating systems includes, among other widely used tools, the emacs text editor, the GNU C compiler (gcc) and the GNU debugger (gdb). He is also recognized for having started the Free Software foundation and its wealth of resources for software developers. Almost all of the traits that opensource.org has identified with itself and the tradition of open source were present in Stallman's 1985 FSF GNU Manifesto. His political position on the ownership of software is unwavering, and strictly categorical. No one should own software, period. To this end he devised the GPL and the GNU Copyleft licences, which are the basis for all of the existing 'open source' licences. Emacs and its LISPing, fanatic devotees aside, it is Stallman's licenses alone that should assure him continued presence in the open-ended story of openness— not so much for their specific content, or for what Stallman insists that they represent with respect to freedom, but what they are: a genuiniely political act. The licenses that Stallman has applied to the GNU software, and from which all manner of other 'open source' licenses are derived, are the fulcrum of politics, law and the market— more than any political platform or manifesto, political action occurs there.

7. This is obscured, however, because Stallman (or Stallman as the Free Software Foundation— an issue of copyright and authorship— hereafter FSF) is also the only conventionally politically vocal personality in this arena. His GNU Manifesto and the variety of short philosophical writings are often pictured as the centerpiece of the Free Software Foundation, earning Stallman a combination of adulation and dismissal. Judged by these writings, Stallman holds no more complicated a political position than "Information should be free." Freedom and community are Stallman's primitives, they mean, and he means them, in good, passionate classical-liberal form. Stallman himself constantly represents these political positions as his "values" (and in classic liberal form, they are just one set of values among others— ideas that should be allowed to circulate— and it is his hope that they will recruit others by virtue of their obviousness). In fact, all of this very honest political speech is divorced from the most important political action that the FSF has performed: the General Public License

8. However, the veritable political actions of the FSF concern the manipulation of legal and contract systems and the creation of new possibilities of ownership, and it is this which should rightly deserve the focus of all attention. However, the FSF also figures itself as a political philosophy, and it is here that the misfit between the efficacy of the political act and its impossible description becomes most apparent. A brief detour through the FSF's philosophical writings should clarify this.

9. Crises of terminology erode the forceful accreations of 'freedom' and 'community' and the FSF home page offers endless distinctions, between free and non-free software, and even "Some Confusing or Loaded Words and Phrases that are Worth Avoiding" as supplement to the origin of freedom [4]. At the apex of these distinctions is the attempt to distinguish between freedom and price. When people ponder free software they inevitably stumble on the eminently common sensical injunction "Think Free Speech, not Free Beer." Practically this has clear implications: it means that there is no taboo against selling free software (Indeed, Cygnus Solutions uses the catch-phrase "Making Free Software Affordable" to sell its software). Of course "selling software" is included under Words to Avoid, as are "for free," and "to give away software." However, the economic logic is crystal clear, even in the earliest manifesto, and depends on a distinction between goods and services, between phyisical things and non-physical things. Rather than depending on "protection" (another Word to Avoid) provided by copyrights in order to ensure profitability on any given thing (physical or nonphysical), it puts the burden on the seller to provide a service associated with the software that people are willing to pay for (e.g. installation, support, customization, etc.).

10. "Free software" therefore makes a proposition which is extremely high risk in contemporary terms: "if you value what this software can do, then pay for it." There is no denying that this is an extreme position. Freedom in this context has one meaning, defined almost strictly by opposition to ownership. A thing/idea cannot be known and owned at the same time without precipitating a moral crisis. The very idea of "having an idea" is not possible unless that idea can be shared completely— without regulation by price or availability— with a "community." Here, the community is the community of users (highly-skilled users of specific platforms, as we have seen with the creation of the "Open Source movement"). The FSF itself comes perilously close to losing control of this expansive notion of freedom. In an article called "Free Software and Free Manuals," FSF criticizes O'Reilly Publishing for producing copyrighted manuals for Free Software (O'Reilly is the de facto standard for manuals for free software, and has recently taken center stage in the marketing of Open Source):

The criterion for a free manual is pretty much the same as for free software: it is a matter of giving all users certain freedoms. Redistribution (including commercial redistribution) must be permitted, so that the manual can accompany every copy of the program, on-line or on paper. Permission for modification is crucial too.
As a general rule, I don't believe that it is essential for people to have permission to modify all sorts of articles and books. The issues for writings are not necessarily the same as those for software. For example, I don't think you or I are obliged to give permission to modify articles like this one, which describe our actions and our views.

11. Several things should be noted here. First of course is that readers are users, and as with all of the issues concering freedom in this realm, these users are highly skilled —highly literate, perhaps. The political force does not distinguish users and readers, all user-readers should all be equal, and all should have access. Ownership is tantamount to secrecy because users cannot change the documentation when they change the software. Freedom of speech outstrips integrity of speech here, and this is anathema to the notion of authorship and ownership— which will reappear as a particular problem of authenticity in Eric Raymond's writings {q.v. below}. However, FSF hedges, some writings are not documentation, therefore some readers are not users, and their rights should be different, in order to protect the integrity of speech. "Articles like this one" are not so affected by the erosion of freedom because they merely "describe our actions and views." The article is in fact marked "Copyright (C) 1997, The Free Software Foundation" with permission to distribute freely, provided the notice of copyright is included. This addendum closes the circle of supplements that shore up FSF's logic:

While a blanket prohibition on modification is unacceptable, some kinds of limits on the method of modification pose no problem. For example, requirements to preserve the original author's copyright notice, the distribution terms, or the list of authors, are ok. It is also no problem to require modified versions to include notice that they were modified, even to have entire sections that may not be deleted or changed, as long as these sections deal with nontechnical topics. (Some GNU manuals have them.) [My emphasis]

12. In the end, it is technology that decides. Only those things dealing with "non-technical" topics may be copyrighted. What does this mean? Are we to rely on common sense that one can easily distinguish between the technical and the non-technical. What systemwill allow us to distinguish, and will that system be free? Where does documentation become technical? Will it depend on it being 'serious' or can technical topics be clever, ironic, obscure, ambiguous, undecideable? When does software become technical. Given this criteria, it would not be difficult to assert that source code is only partially technical, since good code is usually filled with comment code that merely "describes the actions" of the code that is interpreted and compiled— that is, the machine-interpretable code. Yet no one who has written a program would ever admit that comment code is somehow inessential to a program— or worse, that it is "non-technical"—, it is only inessential to the machine. Yet if this is so, does that not make it non-technical? Who would decide? Hopefully not the machine. Besides, it is not machines that value freedom, not yet in any case. But I can hear a chorus of coders in my head asserting the obviousness of the distinction, and I can only agree that it is clear that the distinction is made in each particular case. Someone must decide, and inevitably someone does, this, the pragmatist in me promises, is what allows the tenuous existence of distinctions to begin with.

13. Ironically, this democratic-pragmatic status of the distinction is what most threatens FSF's notion of freedom— a kind of radical openness and infinite modifiability— by giving someone an arbitrary power to make the decision about what is technical and what is not. What is narrated as a kind of complete equality among users, a freedom that is without limit by the unjust and arbitrary actions of a corporation or government, is in fact threatened by just this injustice. If the protection of freedom depends on the distinction between the technical and the non-technical, then someone must make this decision, and we are at degree zero of politics— the problem of the just decision, the just distribution, the fair division, equality guaranteed by a more fundamental inequality. A problem of rules as old as Aristotle's Nicomachean Ethics.

14. FSF never reaches this point however, because the narration of freedom they propose does not match the action they undertake in the realm of copyright licensing. It does not fall short or over-shoot, it just does not fit. Because the political act involved in the GNU GPL is not a political decision in this philosophical sense, but rather the conversion of an existing American and international regime of property rights and contract law. It is the transformation of the system from within the system. The GNU GPL leverages a combination of copyright law and contract law to produce a version of freedom that guarantees itself not by reference to a regulative ideal, or by strict reference to the self-evidence of a constitutional right, but to an historically legitimate regime of law and governance— the american legal system (in particular copyright law and its constitutional foundations) and commercial contracting law (in particular, the Universal Commercial Code). The "copyleft"— so aptly named because it guarantees not the protection of property, but its opposite, the protection from becoming property— is an ingenious program— a technical program that operates the legal system like a giant computer. It is a legal maneuver that could only be made in this context.

15. Even though "protection" is a Word to Avoid by FSF's criteria, it is perhaps the most essential ambiguous word in this proposition. Whereas intellectual property is conventionally 'protected' by the legal ediface of intellectual property law, the GNU GPL leverages the ediface of both copyright law and contract law to ensure [5] that the rights of this copyright are in fact extended to all subsequent users. In both cases, protection is provided by the legitimacy of the american legal system through recourse to the court system. Decisions all down the line [6]. This makes the common sensical "Think Free Speech not Free Beer" less common sense than propaganda, since it is precisely not self-evidence that is made to guarantee the right to information as the massive, complex power of the american juridical and court operating system. If it can be fairly said that the FSF's truly political action consists in this programming of the legal system and not in the claims surrounding freedom as such, then it is all the more disheartening to return to the present disavowal by opensource.org of the FSF's political platform— a disavowal hinging on words and not on licenses.

16. The fact of important words has not escaped the participants in opensource.org. The most intense focus of energy has been expended on creating an "Open Source Definition," which will be used to "brand" software with the newly trademarked name "Open Source™ª." Marketing takes over. To FSF, opensource offers only sour grapes. Particularly sour, as they take the form of a ruthlessly repeated disavowal:

"We realized it was time to dump the confrontational attitude that has been associated with 'free software' in the past and sell the idea strictly on the same pragmatic, business-case grounds that motivated Netscape. We brainstormed about tactics and a new label. 'Open source', contributed by Chris Peterson, was the best thing we came up with."

17. They expand this in an explanation of Open Source "for Hackers"

The case that needs to be made to most techies isn't about the concept of open source, but the name. Why not call it, as we traditionally have, free software?
One direct reason is that the term "free software" is horribly ambiguous in ways that lead to conflict. You can read an extended discussion of this problem.
But the real reason for the re-labeling is a marketing one. We're trying to pitch our concept to the corporate world now. We have a winning product, but our positioning, in the past, has been awful. The term "free software" has a load of fatal baggage; to a businessperson, it's too redolent of fanaticism and flakiness and strident anti-commercialism.
Mainstream corporate CEOs and CTOs will never buy "free software", manifestos and clenched fists and all. But if we take the very same tradition, the same people, and the same free-software licenses and change the label to "open source" - that, they'll buy.
Some hackers find this hard to believe, but that's because they're techies who think in concrete, substantial terms and don't understand how important image is when you're selling something.
In marketing appearance is reality. The appearance that we're willing to climb down off the barricades and work with the corporate world counts for as much as the reality of our behavior, our convictions, and our software. [emphasis in original]


18. And again under the opensource FAQ:

How is 'open source' related to 'free software'?
Open Source is a marketing program for free software. It's a pitch for 'free software' on solid pragmatic grounds rather than ideological tub-thumping. The winning substance has not changed, the losing attitude and symbolism have. See the discussion of marketing for hackers for more.
So that it is clear what kind of software we are talking about, we publish a definition and have made Open Source a 'certification mark' (a special form of trademark) to be applied only to software that meets that definition.
Are you guys opposed to intellectual property rights?
The Open Source campaign does not have a position on whether ideas can be owned, whether patents are good or bad, or any of the related controversies. We think the economic self-interest arguments for Open Source are strong enough that nobody needs to go on any moral crusades about it. [emphasis in original]

19. The contradictory reactions to the term "free software" are less important here than the somewhat extreme rhetoric of denunciation: "ideological tub-thumping", "losing attitute", "A load of fatal baggage", "fanatacism and flakiness and strident anti-commercialism" — terms more often reserved for bitter ad hominem attacks in political campaigns than for marketing differentiations. Imputations of anti-commercialism and the guarded references to communism don't make the case for a simple change of terminology (if anything, they demand a more extreme reversal), but they do indicate a certain fanaticism of the convert. The conversion is particular to the 'community' of hackers that has, for at least twenty years, prided itself on its connections with academia, and the moral high-ground occupied by the liberarian outlaw who is not beholden to corporate interests. This is also why Stallman's experience at the AI lab is an important figure in the story.

20. This conversion to the way of the market should not be surprising— save that it comes so late— for this movement comes at the end of two decades of ceaseless promotion of the deregulating, free-marketeering, supply-side, trickle-down economic answer to the 'socialist' excesses of the New Deal administrative state, not to mention endless announcements of the end of communism, the triumph of democracy and the end of history. A quiet revolution of information technology apotheosized in an orgy of hard-nosed realism.

21. Opensource.org offers to dump attitude for realism, the eminently reasonable logic that insists that the content is what counts. On the one hand, this is true, since we have seen already just how FSF's actually political action is not in its supposedly clenched-fist soap-boxing, but in its licensing practices. On the other hand, opensource.org, in what appears to be an extremely cynical move, suggests that the corporations they hope to cooperate with cannot tell the difference between image and reality, and that by changing the political message to a supposedly more palatable one ("The appearance that we're willing to climb down off the barricades and work with the corporate world counts for as much as the reality of our behavior, our convictions, and our software"), the opensource.org revolution will begin, and the discussion of values can end.

22. FSF responded at length to this exclusion and repudiation of politics for 'cooperating with business'. Prefacing FSF's long rebuttal is a simple assertion: "The people who decide the meaning of "open source software" have accepted a license which is basically flawed: the Apple APSL ." By their own criteria, this is sufficient indictment, but FSF offers a more perspicacious indictment: "The main argument for the term "open source software" is that "free software" makes some people uneasy. That's true: talking about freedom, about ethical issues, about responsibilities as well as convenience, is asking people to think about things they might rather ignore; this can trigger discomfort. It does not follow that society would be better off if we stop talking about these things."

23. Somehow, this assertion is no longer self-evident, and this is also Larry Lessig's concern {Section L Below}— that we are baffled and immobilized by the very idea of governance, unable to speak about justice. A frightening state of affairs for a polity committed to some notion of collective decision-making. But as we have see in the case of the FSF's GNU GPL, it is not collective decision-making that their actions promote, but a kind of programming of the legal and commercial system— which, like all writing, is a very un-collective undertaking.

24. Opensource.org on the other hand wishes to concede even this, because of an unreconstructed faith that "business" is the straightest path to success, by adopting an ideology of cooperation and a practice of commercialization. Even more important than this observation about the expulsion of politics, FSF notes that at the center of this name-change, the most crucial problem relates again to the manner in which protection is sought. FSF rightly notes that the Trademark that is appended to "Open Source" will hardly stop companies from abusing it. This much is clear with any trademark, where recourse is sought only through the judicial industry of threats, cease-and-desists, and court cases. It engages a different and much milder legal industry of protection than would a free software license. Trademark law is merely a way to program the english language, it is the province of marketing. Contract law programs much more: property relations. Trademark puts the burden on the owner of the trademark, contract coordinates.

25. Licensing is not forsaken by opensource.org, the GNU GPL stands as a model license. However, the vigiliance surrounding "freedom" is relinquished in the name of overcoming tub-thumbing, barricading ideology. The verification of licenses as 'free-software' licenses gives way to the 'branding' with open-source. In the former, the arena of politics is a kind of competitive licensing practice (indeed, there are some licenses that outdo the GNU GPL by prohibiting commercial distribution, maintaining not just a hedge against becoming property but against the creation of any kind of value other than the use of the software), in the latter the arena is that of marketing and the media, and despite all cynicism to the contrary, image is unprogrammable.

26. This ersatz pragmatism has an honest basis: to create software that does not suck. And by all accounts the software that has been produced throughout the eighties and the nineties in this uncommercial manner has turned out to be vastly superior— by criteria that have since become very important (especially the internet related criteria such as stability, scalability, the capacity to handle vast numbers of transactions).

27. Eric Raymond is particularly proud of this aspect of the software and that is what he sells as open source: not politics, just good code. Recall that this is the de facto posistion of the IETF: "No kings, no priests, just rough consensus and running code"— but without the blanket disavowal of politics. As in the realm of law, which must at least maintain the fiction that legal decisions are above politics in order to operate, Raymond wants to take the best of FSF and opensource.org— the development model— and leverage it into making the world a better place through technology. Raymond is less liberarian than technocrat in the original American sense of that movement [6]. But this seemingly simple and honest motivation is impossible without a whole host of exclusions, presumably in the name of creating a positive image for the open source brand. These exclusions, coupled with the disingenuous unpolitical revolution of opensource.org are most clearly visible in Raymond's writings.

Last Modified 11-Sep-99 9:01 PM ckelty@mit.edu

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