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[ox-en] [minciu_sodas_en] privatization of open source content (fwd)

Oekonux People,

Please check out this exchange on the topic of privatization and the 
public domain.

Marcin Jakubowski
Open Source Ecology

---------- Forwarded message ----------
Date: Mon, 7 Jun 2004 09:03:07 -0400 (EDT)
From: marcin
Reply-To: minciu_sodas_en
To: minciu_sodas_en, at
Cc: Andrius Kulikauskas <ms>
Subject: [minciu_sodas_en] privatization of open source content


I like your differentiation between 'code,' which 
becomes obsolete with the slightest change, and 'content,' which remains 
useful because of its essential nature. This is a critical point to keep 
in mind with respect to open source development projects which aim at the 
creation of physical goods and other non-software services.

I would like you to continue the thoughts and address how the public 
domain will be helpful in the following case: privatization of product (or 
service) designs containing a small change based on public domain content. 
I could see this being troublesome in the following extreme case: $1 
billion (or its open source value equivalent) was spent on developing a 
business plan for decentralized, small scale photovoltaics production. The 
business plan is complete except for a small detail. A private company is 
tracking our efforts and understands the design rationale sufficiently to 
recognize the worth of a further enabling development. The private company 
jumps on the project, in a closed way, and makes this development. It 
patents the development immediately. The development is an obvious one 
(based on the work already done), it is also one of the 
very few branches of development possible. The patent covers all these 
branches, because they, too, are obvious. So a useful open source 
development project has been privatized successfully. Not good.

The only protection that you indicate against this is morality. Morality 
is in short supply in practice. Some form of license that 
mandates the openness of derivative work may help, but may or may not 
succeed in the courts. I don't see an easy solution here. Please comment 
on such a case and extend your writeup.

It would be useful to have Allan Toner, the open source patent lawyer from 
the Oekonux conference, comment on this.

Marcin Jakubowski, Ph.D.                                                        
Open Source Ecology, Inc.                                                       
4013 Meyer Ave.                                                                 
Madison, WI 53711                                                               
(608) 236-2895                                                                                                                    

On Sun, 6 Jun 2004, Andrius Kulikauskas wrote:

Hi, I've finished my article for Oekonux, "Social Infrastructure for 
Virtual Flash Mobs":

My last section includes an answer to the question by Edward Cherlin and 
others as to whether Public Domain can make sure that content stays 
open.  I place this is the broader question of What is the future of our 
content? and how can we behave responsibly with that in mind?

Edward, I include your letter below and reply within it.


Andrius Kulikauskas
Minciu Sodas
from Vienna, Austria

Organizing for Disintegration

Copyright and Public Domain both have their advantages.  If our work is 
a "finished product", then it makes sense to copyright that, as a way 
for us to continue to participate in the life of our work.  However, 
more an more, our work is never finished, and what has value is the work 
process itself, as it allows us to integrate others and create together 
a shared framework for the coevolution of all of our projects.  This is 
the point of working openly.  Here, Public Domain is most helpful, at 
least as the default.

At Oekonux, it became apparent to me that the main argument against the 
Public Domain is a concern that our material may, at some point, or in 
some way, fall into copyright, and be lost to us.  Thank you to Franz 
Nahrada, Edward Cherlin, Marcin Jakubowsky, Stefan Meretz and others for 
raising this question.

I think the way to answer this is to consider more broadly, how may we 
act responsibly regarding the future of our work?

If we think of our work as standing by itself, then if we place our work 
in the Public Domain, it stays there.  Somebody may modify our work and 
copyright their new work, but our original work continues to be in the 
Public Domain.

Instead, it is more realistic to consider our work as existing within 
some broader initiative.  For example, if a piece of software is 
actually used, then it is continuously developed further, because the 
needs of users and the technological environment do not stand still. 
Software is released in new versions, and it also has a community under 
whose attention the software develops.

Software likes to clump.  It does not like to fork.  A community wants 
to gravitate around the best product.  What can happen is that a product 
in the Public Domain can be further modified and copyrighted by a 
proprietary developer.  That developer may win the hearts of the 
community.  The Public Domain version continues to exist, but the 
community moves on.  And so, the Public Domain software dies.  If the 
only survivor is the proprietary software, then people find themselves 
forced to use it.  In this way, the proprietary software takes over the 
Public Domain software, which is especially frustrating for the original 
developers.  This is the reason that Richard Stallman created the GNU 
Public License, so that if a software is modified or incorporated by 
another, then the latter must also be under the GNU Public License, and 
satisfy certain basic expectations of openness.

However, content behaves very differently than code.  Code is meaningful 
to the extent that somebody can understand exactly what it is doing. 
Content, however, is often most meaningful precisely when we don't 
understand why it works.  Classics like The Bible or Plato's Republic or 
Confucius' Analects are handed down with care through the generations 
because we respect that they say more than we may claim to understand. 
We don't yet have such expectations for code! - and we won't so long as 
alternate programs can be used for the same purpose.  Furthermore, 
content likes to disintegrate.  It is only with great effort that 
content stays unchanged.  Very often we may find less than 1% of content 
relevant to our purpose, and we are able to use it out of context, 
unlike most code.  It is useful to reassemble micro-content for all 
manner of projects.  It is vital to circulate micro-content without 
restriction as a way to mark, find and strengthen relationships and help 
us integrate each other.

Content-based and code-based projects are therefore different with 
regard to their vitality.  In a code-based project, a minor enhancement 
can make the old software obsolete.  In a content-based project, even 
the most brilliant addition can be re-expressed, and the prior content 
remains valuable as a source of micro-content.  There is therefore no 
real risk that Public Domain content will become trapped in a 
proprietary variant.  The primary risk is that, as a society, we do not 
have the consciousness or simply the habit to dedicate our works to the 
Public Domain.  This is our current situation, and we move away from it 
with each conscious dedication.

Most importantly, we should always consider what will happen to our 
creative work when the current projects come to an end.  We have so many 
examples of abandoned projects.  In the case of old software, there is 
perhaps nothing to be saved.  But when we have created content that 
expresses our life interests, then surely that has lasting value.  If we 
want to share with those who live beyond our project, then we must not 
think as a "set of individuals" but as a "commons".  The others in the 
commons will most likely have their own cultures of sharing (their own 
licenses!).  They will need to integrate those parts of our work that 
they find useful, and ignore the boundaries that we have set.  They will 
decide for themselves what ideas, if any, to attribute to us.  We can't 
expect them to negotiate with us, but should give openly so they might 
sustain themselves and their work.  The legal system will not help us, 
and we can rely only on morality that our wishes may be respected.

I conclude with my wish that we appreciate the power of morality in our 
work together.  Legal systems are established to protect the rights of 
individuals, but never directly the commons.  Gandhi said, "there is no 
morality without community", and it is the moral system that serves to 
turn our minds to our shared responsibility for the "commons" that goes 
beyond any particular individual.  The legal system, and the court 
system, is of so little practical use for most people, as it offers its 
equal protection only in large cases.  It is surprising, therefore, why 
people run to it for defense of copyrights that are of so little 
practical value that they would never actually go to court over them. 
The moral system is a much sounder investment of our energy.  Morally, 
our wishes must be respected not only on those who know of them, but 
even on those who come to learn of them only later, or who are linked to 
us indirectly.  But morality also allows for each person's best 
judgment, thus building a true commons.  We can mix our moral appeal 
with particular wishes that we have as a "set of individuals".  Our 
moral maturity, our growth in awareness and consciousness, our 
thoughtful action - these are the foundation for a social infrastructure 
for virtual flash mobs.

My paper is in the Public Domain 2004.

I edited this proposal down to the sections talking about Public
Domain and related concepts, and some of the goals meant to be
achieved by putting materials into the Public Domain. My purpose is to
inquire about the reasoning behind the insistence on Public Domain
status, and rejection of copyleft and other protective measures.

You see, I haven't seen the reasoning, and I don't understand the
point of putting everything into the Public Domain, where on the one
hand everybody will be able to use the released version, but on the
other hand anybody can make some modifications and copyright the result.

Not put "everything", but put "raw material".

As far as I can see, contrary to what Andrius has written below
putting a document or other creation under copyright in no way
prevents the author from sharing it openly. This is demonstrated to my
satisfaction, but not to Andrius's, by the Free Software Foundation's
copyleft, including its Free documentation licenses. Anyone can get
the source code for a program under Free license, and can modify it
and publish the results. The GNU Public License forbids that other
person from placing restrictions on the public's use of the modified
version. What is wrong with that? 

For social networking as I do, it creates burdens on circulating 
material that makes it impractical for me to share content. With any 
form of copyright (copyleft, etc.):
- I need to say it is copyright.
- I need to explain what kind of license it is under.
- I need to keep track of the licenses.
- I need to appeal to fair use.  My understanding of fair use is that, 
when in doubt, I need to ask for permission, which may be after I share.
- In appealing to fair use, I need to avoid commercial use.
This is much too much physical, mental and emotional overhead for me to 
work with others under such conditions.

Because I am a social hacker, working under commercial pressures, I need 
to violate many social norms, do things that others wouldn't normally 
do.  I need to balance this by being of the highest integrity and 
morality.  Therefore I can't be sloppy in the way that the majority of 
people are.

In any case, if you really want to let people use your code and make
the results proprietary, you can use the BSD license or select from
many others.

A friend of mine, John Sankey, published his MIDI recordings of all of
the Scarlatti harpsichord sonatas on the Internet, releasing them to
the Public Domain. Someone then modified the instrument encoding and
made a few other minor changes, copyrighted the result, and began
threatening to sue any site that published Sankey's originals.
Although this threat has no legal merit, Sankey would have been in a
much stronger position to prevent this problem if he had been the
copyright owner and had licensed his recordings freely. In that case
he could treat the usurper as an infringer on the Free license.

Edward, I agree that this was mean and wrong.  But as you write, his 
behavior had no legal merit.  In this case, Public Domain was not the 

My point is that there are other ways to deal with such aggressors.  In 
some cases it can make sense to have preemptive copyright (akin to 
preemptive patents), but not in every case.

I am primarily concerned with discussion groups, wikis, blogs and other 
venues for "raw material".  As I wrote, for "finished product" other 
strategies may be superior.

Edward, Thank you and I appreciate further responses from you and 
others.  Andrius

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