Apple’s ‘Code Is Speech’ Argument, The DeCSS Case, And Free Software

In its ongoing battle with federal law enforcement agencies over its refusal to unlock the iPhone, Apple has mounted a ‘Code is Speech’ defense arguing that “the First Amendment prohibits the government from compelling Apple to make code.” This has provoked some critical commentary, including an article by Neil Richards, which argues that Apple’s argument is “dangerous.”

Richards alludes to some previous legal wrangling over the legal status of computer code, but does not name names. Here is an excerpt from my book Decoding Liberation: The Promise of Free and Open Source Software (co-authored with Scott Dexter) that makes note of a relevant court decision and offers arguments for treating code as speech protected under the First Amendment. (To fully flesh out these arguments in their appropriate contexts, do read Chapters 4 and 5 of Decoding Liberation. I’d be happy to mail PDFs to anyone interested.) Continue reading

Descartes, The Planned City, And Misplaced Philosophical Desires

In Part 2 of Discourse on the Method of Rightly Conducting the Reason and Seeking for Truth in the Sciences Rene Descartes, as a prelude to his ‘clearing away’ of prior philosophy, writes:

[T]here is very often less perfection in works composed of several portions, and carried out by the hands of various masters, than in those on which one individual alone has worked. Thus we see that buildings planned and carried out by one architect alone are usually more beautiful and better proportioned than those which many have tried to put in order and improve, making use of old walls which were built with other ends in view. In the same way also, those ancient cities which, originally mere villages, have become in the process of time great towns, are usually badly constructed in comparison with those which are regularly laid out on a plain by a surveyor who is free to follow his own ideas….we understand how difficult it is to bring about much that is satisfactory in operating only upon the works of others.

Interestingly enough, as the examples of Chandigarh, Brasilia, and Canberra show, the planned city, built from scratch to purpose, the product of a singular architectural vision, is very often a counterpart to the bustling, chaotic, cosmopolitan cities whose growth has proceeded, at best, along an entirely haphazard trajectory.The ostensible beauty of the planned city’s design has not compensated for its lack of history, the absence of accretions of culture and lives lived within its precincts; the planned city gets off the ground with little interference from what came before, but it does not encourage riffs and improvisation. The planned city offers a gleaming surface and little else; it lacks the blemishes that speak of a rich interior. It has set itself apart, and there it shall stay. (No offense is intended to the residents of these cities; still, I think they would agree their city’s lack of a past, its ab initio origins, contribute in some measure to the contrast it offers to the great metropolises of the world.)

There is much that goes wrong with Western philosophy thanks to Descartes: the obsession with system building, the epistemic foundationalism, the quest for certainty, the alignment of philosophy with the sciences and mathematics, the appearance-reality distinction, the desire to ground truths in something beyond the human, the divorce of philosophy from history. (These sins cannot all be laid at Descartes door, of course; Plato is the original culprit for many of them.) Here, in the Discourse, we see the glimmerings of another problematic vision, one manifest in domains other than philosophy as well: that works made in splendid solitude are necessarily inferior to those made jointly with others, through acts of creative, even if sometimes clumsy and flawed, appropriation and improvisation. In doing so, Descartes reinforces–among other things–the fallacy of the lone creator, the solitary artist, the self-made man, the sole author.

Ironically, Descartes ended up generating a great deal of undergrowth that hasn’t been cleared yet (or alternatively, a foundation that still tempts too many of those who came after.)

Freud On Group Production (And ‘Intellectual Property’)

In ‘Group Pyschology’, (Standard Edition, XVIII, 79; as cited in Peter Gay, Freud for Historians, Oxford University Press, 1985, pp. 150), Sigmund Freud writes:

[A]s far as intellectual achievement is concerned, it remains indeed true that the great decisions of the work of thought, the consequential discoveries and solutions of problems, are possible only to the individual, laboring in solitude. But even the mass mind is capable of mental creations of genius, as proved above all by language itself, as well as by folk song, folklore and the like. Beyond that, it remains unsettled just how much the individual thinker or creative writer owed to the stimulus of the crowd among which he lives, whether he is more than the completer of mental work in which the others had participated at the same time.

The Grand Old Man of Psychoanalysis is, as usual, quite perspicuous here (As Gay notes in a parenthetical remark, his concluding ‘reasonable aside…joins, once again, individual and social psychology.’) His choice of examples of the works produced by ‘the mass mind’ are, in particular, telling: language, folk song, and folklore.  Without the first, there is no language to be used as the medium of expression by the novelist, the poet, the writer; no home, as it were, for them to set up safe camp and experiment, boldly, perhaps striking out where none dared have gone before. Idiosyncrasy must have an orthodoxy to pit itself against. Without the second a giant repository of sources for classical and popular music alike is inaccessible.  Bach, it must be remembered, drew heavily on German folk music for some of his most famous compositions; rock and roll owes its provenance to the blues etc. As in language, folk songs and music provide a foundation upon which many an impressive superstructure, sometimes radically different from its lower levels, may be built up. Without the third, similarly, the wellsprings of stories–long and short alike, plays, novels, dries up. The child hears these at her mother’s and grandparent’s knees; she learns them in school; and again, further sorties into territories visible, but not yet ventured into by them, are suggested.

The ‘individual, laboring in solitude’ is not denied any of the credit that is her due by her drawing upon these sources of inspiration. It is her particular and peculiar utilization and deployment of these source materials that is the cause of our appreciation and praise. Our acknowledgement of the genius’ work only tips over into fantasy–and counterproductive restraints on borrowing and creative amendment–when we imagine that her productions  issued as singular emanations from her, and only her, alone. Moreover, the true value of the genius’ contributions does not lie in the solitary splendor of her literary, visual, or musical creations; rather, it is that those creations, by being poured back into the collective cultural potlatch, become fecund sources of further artistic production for those who follow in her footsteps.

We are born into a made world; when we leave, we’ve laid a couple of bricks ourselves. With the mortar and materials of those who came before us.

Once More: ‘Intellectual Property’ Breeds Confusion; Drop it

Rarely, if ever, does the term ‘intellectual property’ add clarity to any debate of substance–very often, this is because it includes the term ‘property’ and thus offers an invitation to some dubious theorizing. This post by Alex Rosenberg at Daily Nous is a good example of this claim:

Locke famously offered an account of the justification of private property, one that Nozick brought to our attention in Anarchy, State and Utopia. The account worked like this: morally permissible private property begins with original acquisition, and that happens when you mix your labor with nature, and leave as good and as much for others. Alas, this “Lockean” proviso is impossible to satisfy. Or at least it is in every original acquisition other than the case of intellectual property. Here one mixes one mental labor with nature—empirical facts about reality, including social reality. Since there are an infinite number of good ideas, the creator of intellectual property leaves as much and as good for others, and therefore has an unqualified right to what he has created.

Brian Leiter’s ownership of the PGR satisfies the most stringent test of private property I know. It’s his creation and he excluded no one else from mixing his or her labor with nature to produce a substitute for or for that matter a complement to his creation.

In light of this fact, the effort to separate him from his intellectual property owing to disapproval of his emails and posts seems rather preposterous.

It has often been proposed–most notably by Richard Stallman, free software‘s most fiery proponent-that the term ‘intellectual property’ be junked in favor of more precise usage. That is, when you are tempted to use the term ‘intellectual property’ use ‘copyright,’ ‘patents,’ ‘trademarks,’ or ‘trade secrets’ instead. Doing this would enable immediate grappling with the precise nature of the issue at hand–in each named domain there are separable legal and policy issues at play.

For instance, the granting of copyright is not the recognition of an abstract property right. It is a utilitarian policy decision–to allow the collection of monopoly rent for a limited period of time–with a very specific objective in mind: the creation of more artistic works. If someone’s copyright rights have allegedly been violated, we may begin by trying to identify the concrete expression that was supposedly copyrightable, the identification of the nature of the infringement–unauthorized reproduction or the production of derivative works–and so on. Incidentally, matters become a tad confusing because Rosenberg talks about ‘mixing mental labor with nature.’ Locke did not have ‘nature’ in mind, rather he had in mind fallow land. Which is precisely not the nature of artistic creation, where the creator does not interact with ‘fallow land’ but mixes his ideas with the ideas of others to create a new work.

In the case of the Philosophical Gourmet Report, it relies for its content on the availability of a great deal of openly available material; collation, processing, and analysis turns this into a new work–the PGR, the new concrete expression. There is indeed a copyright in the particular concrete expression of the PGR–the individual blog pages and the material in them–its author’s commentaries, analysis, and summaries. The unauthorized copying of the content of these is indeed prohibited, as is the production of derivative works–for instance, an unauthorized abridgment of his explanation of the rankings. But the current proposals aimed at changing the ‘management’ of the PGR aim to do nothing of this sort. Prof. Leiter’s concrete expressions–the current content of the PGR–remain his; he could continue to produce them, retain his copyright, and proceed as before. And indeed, an entirely new set of rankings may be produced, using the same ‘raw material’ available to the current authors of the PGR, subjected to new analysis and commentary, and thus resulting in a new concrete expression, a new set of rankings. Also copyrightable.

Analytic philosophers–who are so proud of their claims to provide conceptual clarity–shouldn’t continue to traffic in a term as obfuscatory as ‘intellectual property.’

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.

Copyright Protection for Academic Works: A Bad Idea, But Who’ll Bell The Cat?

Richard Posner has written yet another interesting critique of patent and copyright law; it includes a remark of particular interest to me:

At the other extreme is academic books and articles (apart from textbooks), which are produced as a byproduct of academic research that the author must conduct in order to preserve his professional reputation and that would continue to be produced even if not copyrightable at all. It is doubtful that there is any social benefit to the copyrighting of academic work other than textbooks, which require a lot of work and generally do not enhance the author’s academic reputation and may undermine it.

Posner is exactly right. When it comes to academic works like research monographs and journal articles copyright law is a severe handicap for the creator(s). Restrictions on copying, distribution, and the making of derivative works all work against the author(s) because every one of these restrictions ensures that the most valuable outcome to be derived from an academic work is inhibited: readership is limited as is the central ‘income’ forthcoming from a reputation economy. In most academic works, copyright passes to the publisher; as every aspiring academic comes to realize quickly, one of the essential steps in getting an article or a book published is the signing of the copyright release (or transfer) form; the ‘work’ is no longer yours; step back and observe another entity control access to material that only benefits you if access to is unrestricted and indeed, positively facilitated.

Unfortunately, reform in this domain appears unlikely because the academic world is run by the terrible trio of Promotion & Tenure Committees, ‘Prestigious’ Academic Presses & Journals, and Pompous Seniors Who Refuse To Take the Lead. And animated by the Matthew Principle.  Till P&T committees start to recognize work published in non-traditional venues, and concomitantly, the ‘prestige’ associated with traditional academic presses and journal publishing groups comes to be associated with them, not much will change in the current situation. Much good would be done if senior academics, those with tenured full professorships at  Famous Universities[tm] start publishing their work in non-traditional venues like open access journals and new presses committed to open access books. They have plenty of wealth to spare in this reputation economy; junior academics would benefit a great deal from their largesse in this domain. Their hoarding and accumulation does little to change matters, and ensures the perpetuation of an archaic and ultimately counterproductive model of academic publishing. .

Note: While Posner is not critical about copyright protection for textbooks, some textbooks in my field, philosophy, are anthologies of material available in the public domain, with little value added by the editors (perhaps some discussion questions). These are then marketed at exorbitant prices. I remain hopeful that as more public domain philosophy is digitized and placed online, these textbooks will be phased out in the near future.  And of course, more importantly, many anthologies bear the price they do because they include copyrighted material for which fees have to be paid: excerpts from journal articles or books, which should never have been copyrighted in the first place.

Tim Parks Overrates the Indispensability of Copyright Regimes

Tim Parks has an interesting article on copyright over at the New York Review of Books Blog. (Parks concentrates almost exclusively on copyright for literary works and does not mention movies or software executables.)  There are some interesting observations in it, which lead up to a puzzling conclusion. Roughly, copyright law is indispensable because it facilitates the creation of a very particular kind of literary work: the long-form novel. Writing novels attracts the best and the brightest, and they get into that line of work because of its financial rewards. So:

Copyright, we see, is not essentially driven by notions of justice or theories of ownership, but by a certain culture’s attachment to a certain literary form.

I disagree. And I think Parks should disagree with himself too, because in his own article he also makes note of the following:

[T]here is still an enormous demand for the long traditional novel, for works that reinforce the idea of individual identity projected through time and achieving some kind of wisdom or happiness through many vicissitudes. There is simply no form of escapism, mental immersion, or sustained illusion quite like the thousand-page fantasy narrative…if to have that experience we have to guarantee a substantial income to its creator then society will continue to find a way to do that….

Note that Parks admits: a) the demand for a particular kind of sustained fantasy expressible–for him–in one kind of art form and b) the ability of society to find ways to fund its production. How does this then, lead to the conclusion that copyright is the only way to do so? This is a remarkably impoverished view of our society’s capacity to find ways to recompense the creators of desirable ‘products.’

Parks all too easily dismisses any possibility of comparison with the world of music, which is slowly moving toward displacing the primacy of the copyrighted recording in favor of the live performance:

There is no such performative context for the prose thriller, or even the great American novel.

None? The success of live story-telling performances should indicate there could be a thriving audience for writers willing to read out their works. Audiobooks also indicate that some folks do not mind having books read out to them.

Furthermore, for a novelist, Parks seems to be lacking in imagination when it comes to thinking of alternatives to the long-form novel.  Is the novel really the only kind of creative work that can ‘reinforce the idea of individual identity projected through time…’? And movie fans like me will disagree too, with Parks that ‘there is simply no form of escapism, mental immersion, or sustained illusion quite like the thousand-page fantasy narrative.’ But even if we were to grant Parks this claim, it still seems dubious that the monopoly rent model of copyright is the only way to keep ’em comin’ in.

The modern novel–perhaps beginning with Don Quixote–and modern copyright regimes do not track each other quite as precisely as Parks’ thesis would seem to require. Copyright regimes have created a particular kind of political economy around the world of writing. If they are dispensed with, when the smoke clears, writers will still be writing and we, the insatiable consumers of fantasy that makes our lives more livable, will have, somehow, like good junkies, found the way to keep the fixes coming. A legal regime like that of copyright is merely a contingent, not essential, feature of that addiction.