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.

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.

FOSS Licenses: Hackers As Legal Maestros

Over at Concurring Opinions, Biella Coleman writes a very good post on her anthropological work on hackers. In it Biella states what many of us who have looked at the world of free and open source software think:

[M]any developers are nimble legal thinkers, which helps explain how they have built, in a relatively short time period, a robust alternative body of legal theory and laws

I don’t fully agree with the reasons that Biella gives for why this might be so (i.e., similarities between programming and the writing of laws), but I don’t doubt for a second that this is true. Anyone that comes into contact with free and open source software (FOSS) licensing, and with the rich, vibrant discourse that permeates the FOSS community about about copyright and patent law will know that many hackers know the law really well, and they know how to hack the law to make it work for them.

So I found Orin Kerr’s response curiously skeptical:

Can you give a few examples of how the group you have studied are “nimble legal thinkers”? And what are the “robust alternative body of legal theory and laws” that you mention? I think I can say I’ve been somewhat near this space for a few years and I wouldn’t reach that conclusion: I’ve encountered a lot of naive and self-serving legal claims over the years, but not a lot that I would call nimble or robust.

I think the replies in the comments space address Kerr adequately but I’d like to throw in my tuppence in any case. And I’ll do so by talking about what I know best: FOSS licensing.

First, I think FOSS licenses present an alternative body of legal constructs that show how within a political economy that was increasingly becoming proprietary and using copyright, patent and trade secret law to lock down its content (copyright executables; patent algorithms; treat code as trade secrets), an alternative zone of creation can be created, which can flourish, be viable, and be richly productive of more and better code. (Look for instance, at how FOSS licenses solve the problem of protecting their projects from patent infringement lawsuits, and how they solve the problems inherent in multiple-authorship of a body of code).

Second, as for being “nimble” thinkers, I think copyleft licensing is a work of genius–hats off, Richard Stallman and Eben Moglen–and represents, in my mind, one of the cleverest backs to the legal system that I’ve seen. The GPL–in all its incarnations–reveals a deep understanding of the law, and how best to utilize it to bring about desired ends–solving the problem of non-reciprocity that could create a tragedy of the commons–within an existent legal framework (the GPL’s  protection of the commons gives it a practical and ethical advantage over other FOSS licenses). Read GPL V3 and look at how cleverly it addresses the challenges that made it’s release necessary; it’s “nimble” all right. Any lawyer that reads the GPL, understands it, and gets what it is trying to do, should be struck by the sheer cleverness of how copyright law can be made to serve ends that might not look like its original intended ones, but actually turn out to be in great resonance with them.

Third, I don’t think it is any exaggeration to say that a great deal of thinking about how artistic content in the new political economy of the digital world could be distributed and regulated in a way that is respectful of artists and consumers’ interests alike, has been inspired by FOSS licensing. (Creative Commons licensing is a very good example of this; that body of licenses presents an alternative way to deal with artistic content today; it isn’t perfect, but it’s a start, and it got started by FOSS licenses). Sometimes I wonder indeed, if anyone talking about the new digital economy and how to legally configure hasn’t been inspired by FOSS licensing and practices somehow.

When it comes to being “self-serving,” I’d suggest that there is a general tendency in the legal academy to simply not admit that law can be “done” by non-lawyers, that a body of rules built up over a period of time can be “hacked” by others than them.