Copy, Rip, Burn: The Politics of Copyleft and Open Source - Softcover

Berry, David M.

Softcover

ISBN 10: 0745324142 ISBN 13: 9780745324142

Publisher: Pluto Press, 2008

Synopsis

From downloading music and movies to accessing free software, digital media is forcing us to rethink the very idea of intellectual property. While big companies complain about lost profits, the individual has never enjoyed such freedom and autonomy. Berry explores this debate in a concise way, offering an ideal introduction for anyone not versed in the legalistic terminology that -- up until now -- has dominated coverage of this issue. Looking at the historical development of the free software and the open source movement he examines its growth, politics and potential impact, showing how the ideas that inspired the movement have now begun to influence the wider cultural landscape. He explores whether free software offers us the potential to re-think our relationship with technology in the information society. This book will appeal to students of media and journalism, and anyone interested in new opportunities for creating a truly independent and democratic media.

About this title

About the Author

David M. Berry is a lecturer in the Media and Communication department at the University of Swansea. He researches the philosophy of technology, medium theory, digital media and the social and political implications of the information society. He is the author of Copy, Rip, Burn (Pluto, 2008).

Excerpt. © Reprinted by permission. All rights reserved.

Copy, Rip, Burn

The Politics of Copyleft and Open Source

By David M. Berry

Pluto Press

Copyright © 2008 David M. Berry
All rights reserved.

ISBN: 978-0-7453-2414-2

Contents

Acknowledgements, ix, 
Preface, x, 
1. The Canary in the Mine, 1, 
2. The Information Society, 41, 
3. The Concept of the Commons, 79, 
4. From Free Software to Open Source?, 98, 
5. The Contestation of Code, 147, 
6. The Poetics of Code, 188, 
Notes, 202, 
Bibliography, 234, 
Index, 253, 

CHAPTER 1

THE CANARY IN THE MINE

There's something I don't understand about the open-source movement. Oh, I understand open-source intellectually. I understand that it means that source code is open to be read and reviewed and perhaps revised by anyone who wants to ... What I don't understand is something more sociological. I don't understand who those folks are who want to do all that code reading and reviewing for no recompense. It goes against the grain of everything I know about the software field. (Glass 2000: 104)

Man produces himself through labour. (Marx and Engels 1999: 21)

In 1995, two scientists from the University of Mississippi were granted a patent on a method of increasing the effectiveness of treatments of wounds and cuts by the use of turmeric in a 'special preparation'. They calculated that the estimated market for this product could be worth billions of dollars a year. Turmeric as a treatment for minor skin cuts and wounds has been used in India as a traditional remedy for hundreds of years. However, intellectual property law in the US does not see anything that constitutes 'originality' or 'inventiveness' in traditional remedies and so is unwilling to grant any protection to traditional knowledges.

In America in 1998, a man who had his spleen removed by doctors as treatment for leukaemia discovered that the doctors had proceeded to patent some of the genetic material they removed from his body. After the patient sued the doctors, the court found that the man did not have any claim to his own bodily material as it was a 'naturally' occurring substance and he was classified as a 'source' who had 'abandoned' his genetic material. Yet it was argued that the doctors, due to their 'expertise' and 'ingenuity', had contributed to an 'original' and creative act by 'discovering' this cell-line and were awarded the property rights to this portion of the patient's genetic code. The products that are being developed using his genetic material are estimated to be worth over $2 billion annually (Boyle 1996: 22–4).

In 2002, a nursery in the US innocently painted pictures of Disney characters on the walls for the amusement of the children, aged between one and five years old, who played there. Somehow, the Disney corporation (estimated market capitalisation – $20 billion) found out and their lawyers sent a cease and desist letter to the nursery explaining that this represented an infringement of copyright. They warned that the nursery should remove the offending paintings and images from their walls. Failure to comply would mean an expensive and drawn-out court action that would most likely bankrupt the nursery. Even though the children from the nursery went on national television to plead for their beloved nursery walls, the Disney representative claimed that they viewed the nursery as a for-profit organisation and didn't feel a need to distinguish between it and other organisations. They stated that any infringement by anybody else would be dealt with in the same harsh way (Cox, quoted in Coombe 1998: 53).

In 2005 in the UK, the government discussed developing a new campaign to teach children and young people that copying music, pictures or text without permission is 'theft' and that intellectual property should be respected in the same way as physical property. The programme is largely funded by the content-industry (e.g. music, film and publishing multinationals) intent on educating children into a 'better' understanding of how intellectual property should be used. The aim is to teach children that whenever they produce any work they should mark it with a copyright symbol to prevent other people (presumably also children) 'stealing' from them. Nobody seems to have borne in mind that children learn by repetition and copying, and teaching 'property' rights in this corporate-approved way is likely to undermine learning and education. Combined with this 'education' programme, the Federation Against Copyright Theft (FACT) has been running a campaign attempting to draw a link between terrorism and copyright infringement (the poster images from which were hastily removed from the web following a critical outcry). Even language itself is being manipulated with our ongoing corporate reeducation about copyright infringement through compulsory property-theft DVD trailers, cinema adverts and assertive control of trademarks and corporate slogans.

Again in 2005, a reborn Napster (the company that was originally infamous for allowing the allegedly illegal copying of music until it was forced into bankruptcy by the music industry) introduced a service that for $15 a month allows customers to rent music online by downloading music to your portable music player from their catalogue. In contrast to the download purchase-type services (such as Apple's iTunes), this service is designed to be more like an online music library that you rent from month to month which effectively gives you a huge variety of music from which to choose. The service is aimed particularly at those between the ages of 15 and 25 whom the music industry has identified as most likely to pirate and download illegal music. However, in contrast to purchasing the music, should you fail to keep up payments then the technology will automatically cancel your rights to play on your computer and portable player and your Napster music collection will vanish (Rothman 2005).

Lastly, in 2007, volunteers continued to develop a computer operating system collaboratively over the Internet called GNU/ Linux (Stallman 1999). Started in 1991, GNU/Linux has challenged our understanding of the production of complex software projects and the best method of organising, controlling and managing them. In short, GNU/Linux eschews traditional methods of copyright protection and code secrecy in favour of a common-ownership model (known as copyleft). It is then freely distributed with the source code for little or no cost and encourages contributions, comments, criticisms and bug-fixes from its users and developers. This has led to an exponential rate of growth both in terms of its code quality (which directly relates to the workable nature of the software in a production environment) and also in terms of its feature-list and capabilities. It is now a viable challenger to Microsoft Windows and is taken seriously as an important infrastructural software product (most noticeably supported by IBM).

These cases and wider arguments over intellectual property rights (IPR) may seem disconnected and distant from our everyday lives and worries. After all, it seems unlikely that multinational corporations would be bothered to look into all our collections of music, film and images. The worlds of IPR, legal copyright cases and patent infringement do not usually impinge on the lives of individuals going about their daily activities. However, corporations are becoming increasingly assertive and aggressive in their claims to rights in intellectual property, as well as increasing their holdings and portfolios. It appears that across the corporate world a new awareness is growing of the possibilities of profiting from the ownership of ideas, concepts, expressions and processes.

These examples serve to illustrate that the relationship is shifting between culture, creativity, and the ownership and control of intellectual property rights. The reconfiguration of IPRs is aimed at maximising profit through exclusion but may have repercussions across the whole of our social lives, transforming our ability to interact, contest meaning and to take part in culture and creativity.

IPR debates find their context in a broader shift, the move towards an 'information society', however this is conceived (and there are contradictory theories as to the extent to which there has been any change at all). However, it would be impossible to deny that governments, particularly in the North, are strengthening their intellectual property laws, and pressuring other countries to follow their lead. They are also investing heavily in the production of information, communication and affective services, either directly through subsidy and tax cuts, or more generally in terms of discursive shifts and exhortations for the population to engage in 'life-long learning' and 'creative' work and to become more entrepreneurial and alert to new technology. One only needs to look at the profound changes operating at the level of the university (and instituted through legislative and funding changes by central government), with the shift from a so-called Mode 1 form of knowledge generation (i.e. 'traditional knowledge' generated within a particular disciplinary and primarily academic context) to that of Mode 2 knowledge (i.e. generated outside academic institutions in broader, cross-disciplinary social and economic contexts) (Gibbons et al. 1994). Increasingly, private funding is being sought to drive the research agenda (private-sector partnerships, research institutes, and research and technology parks on campus being the most prominent examples), research outputs are monitored and controlled, and non-performative individuals and disciplines, particularly in the humanities, are pressured through closure and funding difficulties. This new institutional justificatory discourse was demonstrated by Professor Philip Esler, chief executive of the Arts and Humanities Research Council (AHRC) in evidence presented to the Science and Technology Select Committee in Parliament, where the value of cultural research is no longer defended in terms of a public good, but rather is solely linked to economic growth and profit:

It may be that our leverage role will be sufficient here because as you go around the universities you discover that many of them are now introducing knowledge transfer into the heart of their research activity which is where I think it should be; it should be embedded in research activity from the beginning. Some of them are saying to their staff, 'Don't give us an application to a Research Council unless you have addressed the knowledge transfer possibilities' and 'Your promotion application will be helped if you have a knowledge transfer profile', so these sorts of things are already happening.

(HC 310-I 2007: Q35)

Many theorists are now arguing that we are on the cusp of a profound change in the way in which our societies manage and organise the production of both material and immaterial goods. This has been variously termed biopolitical, immaterial or informational production and is said to require new laws, norms and institutions if it is to be financially viable or profitable. This 'new' economics is being constructed through building on the existing institutional intellectual property system (through, for example, copyrights, patents, design rights and trademarks), new legal frameworks and new norms of criminality, but also through the use of technical devices that can actively enforce or deter actions that infringe these legal rights and actions deemed unacceptable to informational property owners. These are known as digital rights management techniques.

Although these changes affect all aspects of agricultural and industrial production from plant and seed ownership to computer-controlled manufacturing, the focus of this book is particularly on the effects on computer code of this widespread drive to control and own information. By seeking to extend property rights to intellectual artefacts (immaterial products) and social relationships (business processes and methods etc.) these interests are strengthening and extending the concept of informational or immaterial proprietorship.

These issues are clearly global; however, due to space and analytical considerations this book concentrates mainly on the geographical areas of the United States and the European Union, and particularly on the free software and open source groups located within those areas. FLOSS, as a networked and increasingly global set of practices, clearly spreads beyond those boundaries; however, historically, the majority of the hacker debates have been located in the US/EU areas. Nonetheless, alternative sites of contestation should be expected in the future (particularly from Japan, Brazil and China) and this should open up interesting avenues for future research.

Throughout this book these issues will be explored with particular attention being paid to their relevance to understanding the political economy of FLOSS together with an analysis of the meanings and discourses of the groups studied. This methodological approach is broadly similar to that which Silverstone (2003) refers to as a 'double articulation', whereby he highlights the importance of paying attention in research to both the material and symbolic dimensions.

The methodological approach taken in this book intends to draw upon the empirical, theoretical and policy work concerned with FLOSS through a theoretically informed understanding of the social order in which FLOSS is being studied. That is, in similarity to cultural studies, this research is concerned with the construction and exercise of power. In doing so, this approach attempts to keep in mind the importance of meaning and 'how it is produced and through particular expressive forms it is continually negotiated and deconstructed through the practices of everyday life' (Golding and Murdock 2000: 71).

This book will use a combination of Laclau and Mouffe's discourse theory (Laclau and Mouffe 2001; Phillips and Jørgensen 2002) together with elements of Fairclough's Critical Discourse Analysis (Fairclough 1992) to analyse both the contents of texts and how wider sedimented hegemonic discourses within society may intervene to suppress discursive conflict within this order of discourse. This, it will be argued, may lead to a naturalisation (Fairclough 1992: 10) of the open source movement's (OSM) order of discourse.

Discourses can also interpellate individuals by creating subject positions for people to occupy. They imply certain expectations about how to act, what to say and what not to say (Phillips and Jørgensen 2002: 41). Examinations of the discourses of the Free Software Foundation (FSF) and the OSM will demonstrate the subject positions within their discourses and how they are constructed. The rights and obligations of these positions are different in the two traditions and the hierarchical relationships and interaction will be outlined. These have social and political implications (Phillips and Jørgensen 2002: 40). For example, the FSF utilise a discourse of ethics and a discourse of freedom (see Stallman 2003b), whereas the OSM draws on discourses of neoliberalism and technical efficiency (see Raymond 2001).

The critical political economy tradition that informs this research differs from economics in the four respects outlined by Golding and Murdock: First, it is holistic; second, it is historical; third, it is centrally concerned with the balance between capitalist enterprise and public intervention; and, finally ... it goes beyond technical issues of efficiency to engage with basic moral questions of justice, equality and the public good.

(Golding and Murdock 2000: 72–3)

Here, I discuss FLOSS as a 'limited totality' through a broadly political economy approach to the ownership and control of FLOSS by looking at the ideas, material capabilities and institutions that structure the social practices of the participants (Cox 1996: 98). This is combined with a critical examination of the meanings embedded within the discourses and social practices of FLOSS practitioners through close analysis of the discourses produced by the FLOSS actors themselves (see Fairclough 1992; Laclau and Mouffe 2001). FLOSS is a result of the interaction of the varied actors involved in FLOSS production, including the programmers and hackers themselves (highlighting the role of ideas), the particular technologies that they utilise and build (the material capabilities) and the networked arrangement of their associations and programming groups, which also include corporations and non-profit organisations (the institutions). In this book I am particularly interested in how questions of power are manifested in FLOSS (such as over the direction of FLOSS development – what is built and why not something else?) and how, even in networked groupings seemingly somehow beyond capitalism or in contradiction to it, certain actors can maximise their influence by their ability to control key resources. These actors use both material ownership (in terms of the copyrights on particular pieces of the FLOSS code or technology, for example) but also discursive argumentation and justification (that is, through ideas), and control of the institutions that are formed within the networks of practice that exist within FLOSS development (one revealing example is Linus Torvalds who is described, rather alarmingly, as the 'benevolent dictator' of Linux).

(Continues...)

Excerpted from Copy, Rip, Burn by David M. Berry. Copyright © 2008 David M. Berry. Excerpted by permission of Pluto Press.
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Edition details

• Publisher: Pluto Press
• Publication date: 2008
• ISBN 10: 0745324142
• ISBN 13: 9780745324142
• Binding: Paperback
• Language: English
• Number of pages: 272