Free Software's Contributions to IP Law

Gabriella Coleman

(This transcription loses flavr without the lolcats and goggies.)

tl;dr summary: See Gabriella speak if you get the chance.

Overview of Anthropology

First exposure during undergraduate years; a friend salivating over a Slackware CD. “How can a CD cause such joy?” Why was he into this CD? She didn’t ask any questions, but two years later she was studying patents and medicine; the friend explained the Copyleft and Gabriella was awestruck by the idea of an alternative to the existing infrastructure.

Became clear that if she ever wanted to finish her PhD she’d move away from religious feeling in Guyana and into the Interenet. Average time to complete in her department: 12 years.

Fieldwork: Total Cultural Immersion. Full participation in the community being studied.

Showed up at an intallfest; technical jargon was impenetrable. Over time, less intimidating.

Discovering Culture

Humour was a noticable part of the community.

“The extraordinary thing about humour is that it returns is to common sense by distancing us from it” - Simon Critchly

Cabals; T.I.N.C., from usenet to today (Cabal wireless network); power should lead to transparency.

Internet Property Cabal

ACTA - much booing and hissing. The central of the IP cabal.

“ACTA is intended to set new IP and trade laws outside and above existing national and multinational law; being negotiated under unprecedented secrecy.”

Over 1000 documents released as a result of lawsuits, but 1362 were withheld on “national security grounds”.

The ancestry includes a lot of bad US law the rest of the world has to date avoided, France/NZ three-strikes law, etc.

Gabriella likes to quote “A Tale of Two Cities” for the state of the world. We have never faced such threats as ACTA, but we should also be optimisitic because of the promises of free software culture and descendants.

Compare and contrast the rise of free software and the rise of global international property. Three periods; culture will be the key focus, whether Richard Stallman or the CEO of Time-Warner.

1984 - 1991

A natural place to start is with rms (a stunning youthful picture with no beard and preppie looks). Gabriella recommends “Rebel Code” for Stallman’s transition from the “happiest period of his life” to the loss of code access. As one delegate put it when the video sound didn’t play, “Then I plugged in my printer and it didn’t work.”

“I am the last survivor of a dead culture and I don’t really belong in the world anymore. And in some ways I feel like I should be dead.” - rms

But he was wrong; Gabriella describes a cultural renaissance via a “virtual land trust” in the face of a “Second Enclosure Movement”, kicked ff by Stallmans’s FSF work. Gabriella recommends the book “Two Bits”. 1984 was the same year that RMS started coding, but also the year that the Intellectual Property Committee, the International Intellectual Property Alliance (an umbrella organisation) and the Software Publisers’ Association; two opposing trends beginning and in opposition to one another.

Two key trends; but the FSF was almost unknown at this stage.

1992 - 1997

Stallman had full control at first; the transformation from a small, political movement to a broader movement by the advent and increasing popularity of Linux.

What’s most interesting is the emotion of bewilderment - people were surprised by the ability of collaboration to scale, and scale virtually, leading to the manifestation of Stallman’s manifesto.

The “Character of startling unexpectedness (which) is inherent in all beginnings.” - Hannah Arendt.

The viability of software freedom was incomplete without actors willing to jump into that which existed only incipiently.

At this point the pragmitiscs arrived; e.g. Linus was uninterested in the political manifesto, but Linux lead to the widespread adoption and awareness of the manifesto; the appearence of free organisations: Apache, KDE, Gnome, Debian (1993).

Programmers became far more legally literate. “Code is law” - Larry Lessig. Programmers have some facility for understanding some of the technical components of the law, according to Gabriella. Coding is a crafting competency.

The formation of a profound legal conciousness amongst hackers that will eventually lead to clashes.

In this period the most unprecendented development was the cojoining of trade, federal, and national organisations working together, as the move from copyright violation as a civil infraction to a criminal one.

A huge upswing in the use of education/awareness campaigns.

“This is a profounf moment historically…if we fail to protect copyright the culture will be hurt…worst result the country will end up in a cultural dark ages.” - CEO Time-Warner.

Finally, this was the period where organisations pushed for the inclusion of IP law in trade treaties - copyright term extensions being standarised and so on.

IP became more publicly known and then put under broader public scrutiny.

1998 - 2004

Free software (1) entered the commercial realm more openly, (2) accentuated social and political antagonism under the DMCA, and finally (3) geeks and hackers moved from “just” collaboration to a large, informal organisation of IP scholars and thinkers.

A move from “festive bewilderment” to triumph, the move into the mainstream. The Netscape source release was a huge PR coup, positively heretical in the context of Silicon Valley.

Elimiate the message of freedom and move to “open” to be more business friendly. his is when Gabriella came on board, thinking that the corporate/open notions would steamroll the notion of freedom. She notes that in fact the adoption actually exposed the notion of freedom to more people, noting that IBM’s Linux graffitti campaign made Linux a household name.

If this was the period where free software entered the commercial realm, it’s also when free software encouraged other freedom frameworks; Indymedia, Wikipedia, Creative Commons.

Redbaiting - an old American tradition of tagging things as communistic=socailistic=evil=robbing Americans of their freedom, very much alive and well today. Gabriella was fascinated having seen many things dismanteled by rad-baiting.

Microsoft tried and failed to sully Linux with redbaiting. Fought off by both disavowels and the narrowness of political focus on helping neighbours (e.g.) and especially tying to free speech rather than a broader message that might pickup all sorts of riders. Showed an example of a Microsoft ad in German with mutating penguin/other-animal crossbreeds.

The Halloween documents showed Microsoft’s both complimentary and hostile views, and became quite the soap opera. At this point most hackers were aware of the trends in the law, but many were uninterested in the political aspects, but focused on the engineering/technical benefits, but the ongoing lobbying (that lead to the DMCA) forced open software geeks in into the political arena. Dimitry S and DVD Jon’s arrests catalysed this.

The trade assocatiations were well aware of hackers and open source at this point, e.g. after the Dimitry arrest the BSA were gloating about it as a victory for the DMCA, but this was a great boon to the anti-DMCA movement, and lead to increasing politicisation and a broadening into e.g. librarians, legal advocates being drawn into IP concerns in this space.

Concluding thoughts.

In 1981 Tracy Kidder published “Soul of a New Machine”, which Gabriella likes to use in teachning, with a pessimistic ending, with a programmer lamenting that managers had robbed the sould of programming. The publishing of the Jargon File was seen as publishing the artifacts of a dying culture; Gabriella hopes it’s apparent that these dire predictions were false, with a cultural renaissance, but the Second Closure Movement, and the pessimism spawned helped lead to that freedom, encouraging Stallman et al to take steps to preserve it.

That political dimension stalled as a more pramatic body of free software contributors and users came into fold, but the IP aggression around the DMCA et al lead to politicisation of those people.

“It is imperative to highlight the ironies of this history,” with the ongoing pushes and esclations of IP law demanding ever more work on behalf of freedom.

Quotes Randoplh Bourne - “Clear sighted irony sees that the world is too multifarious to be evil at heart.” If we apply this to the question of politics that we should see both pessimism and hope as the drivers for positive change; pessimism is required to drive disatisfaction, but without hope, pessimism overwhelms use and drives us down.