Tesla’s ‘Irma Update’ Shows The Dangers Of Proprietary Software

By now, you know the story. Tesla magically (remotely) updated the software of its cars during Hurricane Irma:

Tesla remotely sent a free software update to some drivers across Florida over the weekend, extending the battery capacity of cars and giving extra range to those fleeing Hurricane Irma.

According to reports, the update temporarily unlocked the full-battery potential for 75-kilowatt-hour Model S sedans and Model X SUVs, adding around 30 to 40 miles to their range.

“Cars with a 75-kilowatt-hour battery pack were previously software limited to 210 miles of driving range per single charge and will now get 249 miles, the full range capacity of the battery,” the company wrote on a blog.

As is evident from this description, the software regulating battery life is ‘autonomous’ of the user; the user cannot change it, or tweak it in any way to reflect changing user needs or driving conditions (like, say, the need to drive to a distant point in order to escape a potentially life-threatening change in the weather.) In short, the software that runs on Tesla’s cars is not ‘free‘–not in the sense that you have to pay money for it, but in the sense that you cannot do what you, as the user of the software, might or might not want to do with it: like share it, copy it, modify it. If the user needs ‘help’ he or she must wait for the benevolent corporation to come to its aid.

We, as software users, are used to this state of affairs. Most of the software we use is indeed not ‘free’ in this sense: the source code is kept a trade secret and cannot be inspected to figure out how it does what it does, the binary executables are copyrighted and cannot be copied, lastly, the software’s algorithms are patented. You cannot read the code, you cannot change it to better reflect your needs, and you cannot make copies of something you ‘own’ to give it to others who might need it. As software users eventually come to realize, you don’t ‘own’ proprietary software in the traditional sense of the term, you license it for a limited period of time, subject to many constraints, some reasonable, others not.

In an interview with 3AM magazine, while talking about my book Decoding Liberation: The Promise of Free and Open Source Software I had made note of some of the political implications of the way software is regulated by law. The following exchange sums up the issues at play:

3:AM: One aspect of the book that was particularly interesting to me was your vision of a world full of code, a cyborg world where ‘distinctions between human and machine evanesce’ and where ‘personal and social freedoms in this domain are precisely the freedoms granted or restricted by software.’ Can you say something about what you argued for there?

SC: I think what we were trying to get at was that it seemed the world was increasingly driven by software, which underwrote a great deal of the technology that extends us and makes our cyborg selves possible. In the past, our cyborg selves were constructed by things like eyeglasses, pencils, abacuses and the like—today, by smartphones, wearable computers, tablets and other devices like them. These are all driven by software. So our extended mind, our extended self, is very likely to be largely a computational device. Who controls that software? Who writes it? Who can modify it? Look at us today, tethered to our machines, unable to function without them, using software written by someone else. How free can we be if we don’t have some very basic control over this technology? If the people who write the software are the ones who have exclusive control over it, then I think we are giving up some measure of freedom in this cyborg society. Remember that we can enforce all sorts of social control over people by writing it into the machines that they use for all sorts of things. Perhaps our machines of tomorrow will come with porn filters embedded in the code that we cannot remove; perhaps with code in the browsers that mark off portions of the Net as forbidden territory, perhaps our reading devices will not let us read certain books, perhaps our smartphones will not let us call certain numbers, perhaps prosthetic devices will not function in ‘no-go zones’, perhaps the self-driving cars of tomorrow will not let us drive faster than a certain speed; the control possibilities are endless. The more technologized we become and the more control we hand over to those who can change the innards of the machines, the less free we are. What are we to do? Just comply? This all sounds very sci-fi, but then, so would most of contemporary computing to folks fifty years ago. We need to be in charge of the machines that we use, that are our extensions.

We, in short, should be able to hack ourselves.

Tesla’s users were not free during Irma; they were at the mercy of the company, which in this case, came to their aid. Other users, of other technologies, might not be so fortunate; they might not be the masters of their destiny.

Should Free Software Go Into the Public Domain?

I’ve just finished an interesting Twitter conversation with Glyn Moody (author of Rebel Code: Linux and the Open Source Revolution, still one of the best books on the free and open source software phenomenon). Moody has written a very interesting article over at TechDirt, which wonders whether the time has come to put free and open source software into the public domain rather than releasing it under a variety of licenses which rely for their efficacy on copyright law. (Moody’s article finds its provenance in a paper by Clark Asay, who argues that FOSS could be released into the public domain and yet still thrive as a collaborative project.)

My initial response to Moody’s article was skeptical. (Full disclosure: I have not read Asay’s article but will soon do so.) Several years ago, in our book Decoding Liberation: The Promise of Free and Open Source Software, Scott Dexter and I had argued for the superiority of FOSS licenses like GPL over permissive licenses like the BSD because of the worry that the latter made free-riding possible. (Those arguments are still relevant though I will not repeat them here; please do check out the link.)

Moody addresses this worry by quoting Asay:

if a firm were to take and close a project, they almost certainly would not obtain the free labor that contributors around the world are willing to provide to open-licensed projects. Without that free labor, firms would lose the most significant advantages of an open model of innovation, and the free labor would likely remain loyal to the open version of the project. Firms thus already have incentives to open and contribute as much of their materials as possible, since doing so will attract free labor and trigger innovation in directions that better suit the firm and its strategic direction.

and then goes on to say:

The key point is that the code without the community that creates it is pretty much dead. A company may gain a short-term advantage in taking public domain code and enclosing it, but by refusing to give back its changes, it loses any chance of collaborating with the coders who are writing the future versions. It will have no influence, and no way of raising issues of particular concern that help it with its products. Instead, it will have to keep up the development of its own version of the code single-handed. That’s likely to be costly at best, and may even be impossible except for the very largest companies (Apple is an example of one that has succeeded, basing its Mac OS X operating system on the free BSD version of Unix.)

As I noted in my conversation with Moody, I’m considerably less sanguine than he is about these prospects. I do not doubt that FOSS has made great inroads in the world of software (Moody quotes figures like ‘94% of top supercomputers run Linux; 75% of smartphones run Android; tablets next…’). What I do doubt is whether the value of free software is understood at a more conceptual level so that the closing of a formerly open project would be viewed as a bad thing by the developer community (and by users). Moody thinks so, of course, hence our polite disagreement. (I also think new laws will be needed to protect developers from patent infringement claims.)

In any case, I think the argument is an interesting one especially as one might think that copyright protection was only required for FOSS because of the onerous copyright regimes that it exists in and that a move to the public domain would become easier in an environment that understands FOSS’ promise better and so would be less tolerant of the closing of a formerly open project (like Apple closed BSD). Again, this will only happen in a different legal regime.

Hopefully, I’ll get the time to read the Asay article and respond to it more thoughtfully sometime soon. In the meantime, comments welcome.

Carmen Ortiz Did Not Act Alone in Hounding Aaron Swartz To His Death

No prosecution of war criminals, torturers and mass murderers; no prosecution of those that declare a war on false pretense; no prosecution of those that indulge in  grand larceny and financial fraud, immiserating the lives of many; no prosecuting of the rich and the powerful; but over-zealous hounding of a young, idealistic, brilliant man whose only crime seemed to be the desire to make available accumulated knowledge to all; and as always, the continuing incarceration and punishment of the nation’s dispossessed and underprivileged. This is not the justice system we would like to have, it is the one we actually have.

What could have motivated the prosecutor run amuck, Carmen Ortiz, to seek the horrendously disproportionate jail sentences and fines she sought for Aaron Swartz? Political ambition, perhaps. But focusing on her actions alone would be a mistake. Ortiz took the line she did because she was well aware that she was acting in a very particular context, a time and place in which the penalties she sought stood some chance of being viewed as the appropriate punishment for a baleful malefactor.

Ortiz, you see, was well aware that she lives in a world densely populated by confused, ignorant people, incapable of understanding the legal, economic and utilitarian roots of private property, or the differences between physical property and intangible property, who are too lazy to bother disentangling the idiotic term ‘intellectual property’, who faithfully parrot the lying press releases of media corporations, who cannot be bothered to understand how the creation and propagation of ideas works. These people can be relied upon to childishly shriek and scream at every instance of an action that threatens to upend the neat little black and white world they have constructed of absolute property rights and romantic notions of creativity. They can be relied upon to deploy, with little prompting, an emotionally charged, morally inflected language of ‘theft’, ‘piracy’, ‘robbery’, and ‘stealing’ to describe actions whose descriptions call for considerably more nuance. They are firm and upstanding and self-righteous, full of rectitude and judgment; they imagine themselves defenders of the starving artist and the inventor in the basement, not realizing they are, as usual, corporate shills and defenders of the antitheses of their proclaimed stances. They clog our bulletin boards and blog comments spaces, whining about how ‘artists deserve to be paid’, about how books and poems  will never get written, how movies will never be made, music will never be composed, songs will never be performed  in a world that does not offer as much copyright protection as possible, from the cradle to the grave and beyond.

These howling fools–who include those who work at supposedly elite institutions of learning–had set up a chorus, an applause track that Ortiz craved. Her cruel, over-the-top, inquisitorial sentence of thirty-five years and a million dollars, one would that terminate the career of a man who packed more creativity into his little pinkie than all the hordes who claim to be the faithful defenders of creativity, would ensure her hosannahs from this gallery. She would be enshrined as the Grand Protector of Property. Could there be a higher honor in our society?

So she acted. And pushed Aaron Swartz into his grave.