Structural Change for the Public Benefit: A Lesson from Open Source Licenses

Forty years ago there was a political agenda in the US and much of the world that had merit:  fix the issues of ecology, control the expanding power of the multi-national corporations, regulate or phase out nuclear technologies, address the population explosion, and abandon American wars in distant countries.   Then why have we seemed to make either little progress or made progress only to see backsliding?   Change, when we achieved it, does not seem to stick.    Laws were made and then undone.   The Environmental Protection Agency was created and then undermined.  Another example is AT&T was broken apart, just to re-join again.  In the United States we have seen both major parties in power, the electorate evenly split, but little enduring progress on key issues.

I think the answer can be found when we did not achieve structural change for the public benefit.

“Structural change”, in this context, is a re-aligning of forces underlying decision-making.   It has the effect of locking in a change thereby making it difficult to undo.   Structural change to an industry changes how the actors interact and who does what.    Without structural change, things can devolve to their previous status.

“Structural change for the public benefit” would be rule changes on interactions, and these rules are typically set by governments.      But we are experiencing a problem.   Even democratic governments are no longer responding to public interest as one would expect.   This is quite noticeable in the United States.

Equity based corporations, with their unlimited lifetime, can press to restore previous privileges over the course of decades.   Politicians in the United States are influenced by those companies that fund the rising campaign expenses, thus making our laws reflect the interests of the companies that can pay the most.   Long term pressure from companies can reverse laws that were once thought of as progress on some of our agenda.

So if we can not turn to government for setting rules for public benefit, which is fundamentally their role, what can we do?   Turns out there is an example from the technology sector that can hold back some of the corporate forces.

During my career in high-technology the spread of the Internet, Free and Open Source Software, and the World Wide Web have had large scale impacts on industry and culture.    But the openness of the Internet is looking shaky based on the failure to secure government support for “net neutrality” thereby allowing infrastructure control to be dominated by a few large corporations.     If allowed to run its course, a few companies can determine what new services will be introduced on what terms.    This will mean that distribution can be controlled as in the days of the private railroad companies in the United States before Anti-trust legislation broke them up and lead to regulation.

The World Wide Web, an system based on open protocols also has implicit rules of good behavior that has allowed it to grow. In the last 6 years, Google has come to dominate a key unregulated component, search, and then break some of the implicit quid-quo pro between the search engines and websites– a balance where sites would allow to be indexed in return for search services directing users to that site.    Google will index others by “crawling” the site and keep the content on their servers for purposes beyond search, and prevent other search engines from crawling their content sites such as Google books and youtube.    Other search engines that try to download Google books automatically are locked out, and the same with those trying to index YouTube. So the World Wide Web has not effective regulation to prevent dominant players from hijacking the system.

Free and open source software, however, has an idea that might lead it to have a very long life despite corporate interests interrupting government or fair markets.

Central to free and open source software are licenses which, in turn, are based on copyright.    When copyright was expanded to envelop everything expressed in the United States in 1976 via a radical rewriting of copyright law, the effect was an enclosure of ideas.   This law granting monopolies to those that never had it, never expected it, nor in many ways wanted it.   But because everything expressed was suddenly controlled by someone, it caused communities based on sharing to break.   The first dramatic one was in software with the Lisp Machine operating system ceasing to be a community project and an object owned by MIT, which it then sold to a corporation.    The result was the software, which was the combined efforts of hundreds over the course of years, died with the short lived company, and one of the authors, Richard Stallman, set out to find a way to keep this waste from happening again.   He invented a system-within-the-system– he called it copy-left.    It as a set of sharing rules that had the effect of re-establishing some of the freedoms we had before the 1976 copyright law.    These sharing rules are fascinating and have been very successful, but the key point here is that a “structural change for public benefit” without government help.

The “structural change for public benefit” brought about by the Free and Open Source licenses and the movement were dependent on the government having made monopoly restrictions very strong.    These licenses used the system against itself in a way that a whole industry to, in effect, voluntarily rewrite law.    This was painful and slow, but showed it was possible.   This system is robust because it only depends on strong monopoly restrictions.   If these restrictions were repealed by the government, then we would have most of the freedoms that have been re-established by this scheme.    So it works either way.

This is not to say it is desirable.   It is much more desirable to have a government that is responsive to public interests.   But since this seems to be receding at least in the United States, it is helpful to know that structural change can be enacted that provide relief from extreme laws by leveraging these laws.

In another article, I will suggest we can create enduring public benefit in housing by leveraging this approach to structural change.

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One Response to Structural Change for the Public Benefit: A Lesson from Open Source Licenses

  1. Great post. I remember as a kid in high school being told by a teacher with compter company that the laws about copyright had recently changed and a copyright notice was no longer required to have copyright. What a mess. That’s one reason I suggest that copyrights be taxed annually at a small percent of a self-assessed buyout value:
    http://journalism.berkeley.edu/projects/biplog/archive/000431.html

    On a tangent, I wrote something related to free and open source license and non-profits (public benefit corporations) for the Markle Foundation about a decade ago when they asked for public comments on the internet and society. I’m glad that non-profit culture has improved a little since when I wrote this (short version and long version) but it still has a ways to go:
    * An Open Letter to All Grantmakers and Donors On Copyright And Patent Policy In a Post-Scarcity Society
    http://www.pdfernhout.net/open-letter-to-grantmakers-and-donors-on-copyright-policy.html
    * On Funding Digital Public Works
    http://www.pdfernhout.net/on-funding-digital-public-works.html

    From the abstract of the first one: “Foundations, other grantmaking agencies handling public tax-exempt dollars, and charitable donors need to consider the implications for their grantmaking or donation policies if they use a now obsolete charitable model of subsidizing proprietary publishing and proprietary research. In order to improve the effectiveness and collaborativeness of the non-profit sector overall, it is suggested these grantmaking organizations and donors move to requiring grantees to make any resulting copyrighted digital materials freely available on the internet, including free licenses granting the right for others to make and redistribute new derivative works without further permission. It is also suggested patents resulting from charitably subsidized research research also be made freely available for general use. The alternative of allowing charitable dollars to result in proprietary copyrights and proprietary patents is corrupting the non-profit sector as it results in a conflict of interest between a non-profit’s primary mission of helping humanity through freely sharing knowledge (made possible at little cost by the internet) and a desire to maximize short term revenues through charging licensing fees for access to patents and copyrights. In essence, with the change of publishing and communication economics made possible by the wide spread use of the internet, tax-exempt non-profits have become, perhaps unwittingly, caught up in a new form of “self-dealing”, and it is up to donors and grantmakers (and eventually lawmakers) to prevent this by requiring free licensing of results as a condition of their grants and donations.”

    I can wonder of one way to approach this might be a public interest lawsuit against some non-profit with an educational mission (like a university) claiming the organization was involved with “self-dealing” in relation to trying to license copyrighted materials or patents and asking for the materials to be released under free licenses, and asking that the organization’s non-profit status otherwise be revoked by the IRS? Of course, maybe that would just lead to the status quo being reaffirmed as legal precedent, I don’t know. Maybe one could find a cooperative non-profit that was willing to be sued over this issue to establish how proprietary copyright and creating “artificial scarcity” is antithetical to a non-profit’s educational mission?

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