Something Happened on the Way to the ©
Authors: Graves Tom 
Published: October 2020

Intellectual property. It's a strange term, indicating from its structure that the questionable notion of property has been appended to something that, in a tangible sense, doesn't even exist. Difficult to grasp, like water, or air, yet at the same time so desirable to own...
In Anglo-American law, property is defined, as the eighteenth-century jurist Sir William Blackstone put it, as "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe" (Terry & Guigni 207). For most physical things, the 'right' of exclusion seems simple enough to understand, and to control. Yet even there, when the boundaries blur, especially over space and time, the results of such 'rights' become less and less manageable, as indicated by the classic 'tragedy of the commons' (Hardin). And once we move outside of the physical realm, and into the world of ideas, or of feelings or the spirit, the notion of an exclusive 'right' of ownership steadily makes less and less sense.
It's an issue that's come to the fore with the rise of the Open Source movement, creating software that can be freely shared and used by anyone. There are many arguments about exactly is meant by 'free', though there's often an emphasis on freedom of ideas rather than price: "think of 'free' as in 'free speech', not as in 'free beer'" is how one group describes it (Free Software Foundation). Unlike proprietary software such as Microsoft Windows, the source-code from which the programs are compiled is available is available for anyone to view, amend, extend. As yet, few programmers are paid to do so; certainly no-one is excluded from doing so. The results from this apparently anarchic and altruistic model would be startling for anyone coming from a conventional economics background: for example, Sourceforge, the main Open Source repository, currently hosts almost 60,000 projects, with almost ten times that number of active contributors (Sourceforge). Some of these projects are huge: for example, the Linux kernel is well over a million lines of code, whilst the Gnome user-interface is already almost twice that size. Open Source programs such as the 'LAMP' quadrivirate of the GNU/Linux operating-system, Apache web-server, MySQL database and PHP, Perl or Python scripting languages provide most of the software infrastructure for the Internet (Linux, Apache, MySQL, PHP, Perl, Python).
And the Internet returns the favour, by providing a space in which collaboration can happen quickly and for the most part transparently, without much regard for status or location. Yet central though the Internet may be to this new wave of shared 'public good', the core innovations of Open Source are more social than technological. Of these, probably the most important are a specific kind of collaboration, and an unusual twist on copyright law.
Eric Raymond's classic essay 'The Cathedral and the Bazaar' is one of the best descriptions of the social processes behind Open Source (Raymond). "Every good work of software starts by scratching a developer's personal itch", says Raymond: see a need, tackle it, share the initial results, ask for help. Larry Wall, the initiator of Perl, "wanted to create something that was so useful that it would be taken up by many people" (Moody 133), and consciously promoted it in much the same way as a missionary (Moody 131). Open access to communications and a culture of shared learning provides the space to "release early, release often" and invite collaboration. Some projects, such as Apache and PHP, are run as a kind of distributed collective, but many are somewhat hierarchical, with a well-known lead-figure at the centre: Linus Torvalds for Linux, Larry Wall for Perl, Guido van Rossum for Python, Miguel de Icaza for Gnome. Yet the style rarely seems hierarchical in practice: the lead-figure's role is that of coordinator and final arbiter of quality, far removed from the militaristic 'command and control' so common in business environments.
What makes it work is that anyone can join in, identify a bug, submit a patch, volunteer to design some desirable function or feature, and gain personal satisfaction and social respect for doing so. Programmers’ motivations vary enormously, of course: some share their work as a kind of libertarian statement, whilst others are more driven by a sense of obligation to others in the software-development community, or in the wider world. Yet for many, perhaps most, it's the personal satisfaction that's most important: as Linus Torvalds comments, "most of the good programmers do [Open Source] programming not because they expect to get paid or get adulation by the public, but because it is fun to program" (Torvalds & Ghosh). In that sense it more closely resembles a kind of art-form rather than a conventional business proposition.
Realistically, many of the smaller Open Source projects are little more than student exercises, with limited real-world usefulness. But for larger, more relevant projects this borderless, inclusive collaboration usually results in code of very high quality and reliability – "given enough eyeballs, all bugs are shallow" is another of Raymond's aphorisms – in stark contrast to the notorious security holes and general fragility of proprietary products from Redmond and elsewhere. And it leverages different people's skills to create an extraordinary degree of 'win/win', as Linus Torvalds points out: "imagine ten people putting in one hour each every day on the project. They put in one hour of work, but because they share the end results they get nine hours of 'other peoples work' for free. It sounds unfair: get nine hours of work for doing one hour. But it obviously is not" (Torvalds & Ghosh). It's this kind of return-on-investment that's making many businesses more than willing to embrace the 'insanity' of paying programmers to give away their time on Open Source projects (Pavlicek).
The hard part, for many businesses, is that it demands a very different approach to business relationships. "Forget business as usual", writes Russell Pavlicek; "forget about demanding your own way; forget fluffy, empty management speeches; forget about fudging facts; forget about marketing that alienates the community; forget about pushing hype rather than real value; forget about taking more than you give" (Pavlicek 131-7). When everything is open, and everyone is in effect a volunteer, none of those time-dishonoured tactics works well. But the real catch is the legal framework under which Open Source is developed and distributed. Conventionally, placing work in the public domain – the intellectual-property equivalent of the commons – means that anyone can apply even the minutest of changes and then declare it exclusively as their own. Walt Disney famously did exactly this with many classics, such as the Grimms' fairy-tales or Rudyard Kipling's Jungle Book. The Free Software Foundation's 'GNU Public License' – used for most Open Source software – avoids this by copyrighting the work, permitting freedom to view, amend and extend the code for any purpose, but requiring that any new version permit the same freedoms (GNU/FSF).
This inclusive approach – nicknamed 'copyleft' in contrast to conventional copyright – turns the usual exclusive model of intellectual property on its head. Its viral, self-propagating nature uses the law to challenge the law of property: everything it touches is – in principle – freed from exclusive private ownership. Larry Lessig and the Creative Commons legal team have extended this somewhat further, with machine-readable licenses that permit a finer granularity of choice in defining what uses of a work – a musical performance, a book or a Weblog, for example – are open or withheld (Creative Commons). But the central theme is that copyleft, together with the open nature of the Internet, "moves everything that touches it toward the public domain" (Norlin). Which is not a happy thought for those whose business models depend on exclusion and control of access to intellectual property – such as Hollywood, the media and the biotechnology industry – nor, for that matter, for those who'd prefer to keep their secrets secret (AWOLBush).
Part of the problem, for such people, is a mistaken notion of what the Internet really is. It's not a pipe or a medium, like cable TV; it's more like a space or a place, a 'world of ends' (Searls & Weinberger). Not so much infrastructure, to be bought and sold, but necessarily shared, it's more 'innerstructure', a kind of artificial force of nature: "like the Earth's fertile surface, it derives much of its fertility from the life it supports" (Searls). Its key characteristics, argues Doc Searls, are that "No-one owns it; Everyone can use it; Anyone can improve it". And these characteristics of the Internet ultimately arise not from the hardware – routers, cables, servers and the like – or even the software, but ultimately from an agreement – the Internet Protocol – and an idea – that network connections can and should be self-routing, beyond direct control.
Yet perhaps the most important idea that arises from this is that one of the most basic foundation-stones of Western society – the model of property as an exclusive 'right', a "sole and despotic dominion" – simply doesn't work. This is especially true for supposed 'intellectual property', such as copyrights, trade-marks, patents, genome sequences, scientific theories: after all, from where do those ideas and patterns ultimately arise? Who owns that? In legal terms, there's no definable root for a trail of provenance, no means to identify all involved intermediaries, and hence no ultimate anchor for any kind of property claim. Many other types of intellectual property, such as domain-names, phrases, words, radio-frequencies, colours, sounds - the word 'Yes', the phrase 'The Real Thing', Ferrari red, the sound of a Harley-Davidson – can only be described as arbitrary expropriations from the public domain. In many senses, then, the whole legal edifice of intellectual property is little more than "all smoke and mirrors", held together by lawyers' bluff – hardly a stable foundation for the much-vaunted 'information economy'! Whilst it's not quite true that "nobody owns it", in practice the only viable ownership for any kind of intellectual property would seem to be that of a declaration of responsibility, of stewardship – such as a project-leader's responsibility for an Open Source project – rather than an arbitrary and ultimately indefensible assertion of exclusive 'right'.
So a simple question about intellectual property – is it copyright or copyleft? should source-code be proprietary or 'free'? – goes deeper and deeper into the 'innerstructure' of society itself. Miguel Icaza describes this well: "as the years pass and you're working in this framework, you start to reevaluate in many areas your relationships with your friends and your family. The same ideas about free software and sharing and caring about other people start to permeate other aspects of your life" (Moody 323). Perhaps it's time to look more carefully to look more carefully not just at intellectual property, but at the 'rights' and responsibilities associated with all kinds of property, to reach a more equitable and sustainable means to manage the tangible and intangible resources of this world we share.

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Links

http://creativecommons.org/
http://cyberlaw.stanford.edu/lessig

http://sourceforge.net/

http://tuxedo.org/~esr/writings/cathedral-bazaar/

http://worldofends.com/

http://www.apache.org/

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http://www.firstmonday.dk/issues/issue3_3/torvalds/index.html

http://www.fsf.org/licenses/licenses.html\lTOCWhatIsCopyleft

http://www.fsf.org/philosophy/free-sw.html

http://www.gnome.org/

http://www.linux.org/

http://www.linuxjournal.com/article.php?sid=6033

http://www.linuxjournal.com/article.php?sid=6074

http://www.mysql.com/

http://www.openresources.com/documents/cathedral-bazaar

http://www.perl.org/

http://www.php.net/

http://www.python.org/

http://www.unchartedshores.com/blogger/archive/2003_02_23_archive3.html\l90388497

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MLA Style

Graves, Tom. "Something Happened on the Way to the ©" M/C: A Journal of Media and Culture< http://www.media-culture.org.au/0304/03-somethinghappened.php>.

APA Style

Graves, T. (2003, Apr 23). Something Happened on the Way to the ©. M/C: A Journal of Media and Culture, 6,< http://www.media-culture.org.au/0304/03-somethinghappened.php>