26 March 2010

In praise of the public domain

Filed under: books, Intellectual property — David Wood @ 1:20 pm

James Boyle’s book “The public domain: enclosing the commons of the mind” is an extremely thoughtful, carefully written account of a major issue.

The issue is that a very powerful and useful resource is, largely unwittingly, being deeply damaged by people following actions that on the surface seem to make sense.

The resource in question can be called “the public domain”.  It’s the general set of ideas, designs, and artforms which we can all build on, to create yet new ideas, designs, and artforms.  Everyone who writes a book or blog article, draws a picture, composes music, designs a product, or proposes a new scientific theory, takes all kind of advantage of this public domain.  However, this domain is under increasing attack.

The attack comes as a result of concepts of “intellectual property” being applied too aggressively.  In this line of thinking:

  1. People generally need incentives to undertake arduous work to create new ideas, designs, and artforms;
  2. An important aspect of incentive is expected monetary reward from expected benefits from these ideas, designs, and artforms;
  3. Any technology or social practice that undercuts this potential monetary reward is, therefore, suspect;
  4. In particular, the growing ability of computer tools and Internet distribution means that we need to tighten laws governing copying;
  5. Otherwise, the incentive to create new ideas, designs, and artforms will be undermined;
  6. As a result, laws about copyrights and patents need to be extended.

Of course, Boyle is far from being the first person to criticise this general line of thinking.  However, what makes Boyle’s book stand out is the balance which he brings.

Boyle carefully explains the merits of the arguments in favour of intellectual property, as well as the merits of the arguments against extending laws about intellectual property.  He believes there is substantial benefit from patents and copyrights continuing to exist.  As he notes in the final chapter of his book:

If the answer were that intellectual property rights are bad, then forming good policy would be easy. But that is as silly and one-sided an idea as the maximalist one I have been criticizing here. Here are … examples:

1. Drug patents do help produce drugs. Jettisoning them is a bad idea—though experimenting with additional and alternative methods of encouraging medical innovation is a very good one.

2. I believe copyrights over literary works should be shorter, and that one should have to renew them after twenty-eight years—something that about 85 percent of authors and publishers will not do, if prior history is anything to go by. I think that would give ample incentives to write and distribute books, and give us a richer, more accessible culture and educational system to boot, a Library of Congress where you truly can “click to get the book” as my son asked me to do years ago now. But that does not mean that I wish to abolish copyright. On the contrary, I think it is an excellent system…

(The text of the entire book is available free online, under a creative commons licence.)

But Boyle also argues, persuasively, throughout his book, that there need to be limits to the application of ideas about intellectual property.  As summarised at the start of the ninth chapter:

It is a mistake to think of intellectual property in the same way we think of physical property…

Limitations and exceptions to those rights are as important as the rights themselves…

The public domain has a vital and tragically neglected role to play in innovation and culture…

Relentlessly expanding property rights will not automatically bring us increased innovation in science and culture…

The second enclosure movement is more troubling than the first…

It is unwise to extend copyright again and again, and to do so retrospectively, locking up most of twentieth-century culture in order to protect the tiny fragment of it that is still commercially available…

Technological improvements bring both benefits and costs to existing rights holders—both of which should be considered when setting policy…

We need a vigorous set of internal limitations and exceptions within copyright, or control over content will inevitably become control over the medium of transmission…

The Internet should make us think seriously about the power of nonproprietary and distributed production…

Perhaps the most powerful argument in the list above is the third one: we need a healthy public domain, for the good of all of us – so that new ideas, designs, and artforms can continue to be developed.  To make this argument more vivid, Boyle builds an intriguing analogy:

In a number of respects, the politics of intellectual property and the public domain is at the stage that the American environmental movement was at in the 1950s.

In 1950, there were people who cared strongly about issues we would now identify as “environmental”—supporters of the park system and birdwatchers, but also hunters and those who disdained chemical pesticides in growing their foods. In the world of intellectual property, we have start-up software engineers, libraries, appropriationist artists, parodists, biographers, and biotech researchers. In the 50s and 60s, we had flurries of outrage over particular crises—burning rivers, oil spills, dreadful smog. In the world of intellectual property, we have the kind of stories I have tried to tell here. Lacking, however, is a general framework, a perception of common interest in apparently disparate situations.

Crudely speaking, the environmental movement was deeply influenced by two basic analytical frameworks. The first was the idea of ecology: the fragile, complex, and unpredictable interconnections between living systems. The second was the idea of welfare economics—the ways in which markets can fail to make activities internalize their full costs. The combination of the two ideas yielded a powerful and disturbing conclusion. Markets would routinely fail to make activities internalize their own costs, particularly their own environmental costs. This failure would, routinely, disrupt or destroy fragile ecological systems, with unpredictable, ugly, dangerous, and possibly irreparable consequences. These two types of analysis pointed to a general interest in environmental protection and thus helped to build a large constituency which supported governmental efforts to that end. The duck hunter’s preservation of wetlands as a species habitat turns out to have wider functions in the prevention of erosion and the maintenance of water quality. The decision to burn coal rather than natural gas for power generation may have impacts on everything from forests to fisheries. The attempt to reduce greenhouse gases and mitigate the damage from global warming cuts across every aspect of the economy.

Of course, it would be silly to think that environmental policy was fueled only by ideas rather than more immediate desires. As William Ruckelshaus put it, “With air pollution there was, for example, a desire of the people living in Denver to see the mountains again. Similarly, the people living in Los Angeles had a desire to see one another.” Funnily enough, as with intellectual property, changes in communications technology also played a role. “In our living rooms in the middle sixties, black and white television went out and color television came in. We have only begun to understand some of the impacts of television on our lives, but certainly for the environmental movement it was a bonanza. A yellow outfall flowing into a blue river does not have anywhere near the impact on black and white television that it has on color television; neither does brown smog against a blue sky.” More importantly perhaps, the technologically fueled deluge of information, whether from weather satellites or computer models running on supercomputers, provided some of the evidence that—eventually—started to build a consensus around the seriousness of global warming.

Despite the importance of these other factors, the ideas I mentioned—ecology and welfare economics—were extremely important for the environmental movement. They helped to provide its agenda, its rhetoric, and the perception of common interest underneath its coalition politics. Even more interestingly, for my purposes, those ideas—which began as inaccessible scientific or economic concepts, far from popular discourse—were brought into the mainstream of American politics. This did not happen easily or automatically. Popularizing complicated ideas is hard work. There were popular books, television discussions, documentaries on Love Canal or the California kelp beds, op-ed pieces in newspapers, and pontificating experts on TV. Environmental groups both shocking and staid played their part, through the dramatic theater of a Greenpeace protest or the tweedy respectability of the Audubon Society. Where once the idea of “the Environment” (as opposed to “my lake,” say) was seen as a mere abstraction, something that couldn’t stand against the concrete benefits brought by a particular piece of development, it came to be an abstraction with both the force of law and of popular interest behind it.

To me, this suggests a strategy for the future of the politics of intellectual property, a way to save our eroding public domain.

In both areas, we seem to have the same recipe for failure in the structure of the decision-making process. Democratic decisions are made badly when they are primarily made by and for the benefit of a few stakeholders, whether industrialists or content providers. This effect is only intensified when the transaction costs of identifying and resisting the change are high. Think of the costs and benefits of acid rain-producing power generation or—less serious, but surely similar in form—the costs and benefits of retrospectively increasing copyright term limits on works for which the copyright had already expired, pulling them back out of the public domain…

How important are these issues?

We can all laugh at the famous xkcd stick figure cartoon lamenting “sometimes I just can’t get outraged over copyright law”.

But Boyle writes persuasively on this topic too:

Who can blame the stick figure? Certainly not I. Is it not silly to equate the protection of the environment with the protection of the public domain? After all, one is the struggle to save a planetary ecology and the other is just some silly argument about legal rules and culture and science. I would be the first to yield primacy to the environmental challenges we are facing. Mass extinction events are to be avoided, particularly if they involve you personally. Yet my willingness to minimize the importance of the rules that determine who owns science and culture goes only so far.

A better intellectual property system will not save the planet. On the other hand, one of the most promising sets of tools for building biofuels comes from synthetic biology. Ask some of the leading scientists in that field why they devoted their precious time to trying to work out a system that would offer the valuable incentives that patents provide while leaving a commons of “biobricks” open to all for future development. I worry about these rules naturally; they were forced to do so.

A better intellectual property system certainly will not end world hunger. Still it is interesting to read about the lengthy struggles to clear the multiple, overlapping patents on GoldenRice—a rice grain genetically engineered to cure vitamin deficiencies that nearly perished in a thicket of blurrily overlapping rights.

A better intellectual property system will not cure AIDS or rheumatoid arthritis or Huntington’s disease or malaria. Certainly not by itself. Patents have already played a positive role in contributing to treatments for the first two, though they are unlikely to help much on the latter two; the affected populations are too few or too poor. But overly broad, or vague, or confusing patents could (and I believe have) hurt all of those efforts—even those being pursued out of altruism. Those problems could be mitigated. Reforms that made possible legal and facilitated distribution of patented medicines in Africa might save millions of lives. They would cost drug companies little. Africa makes up 1.6 percent of their global market. Interesting alternative methods have even been suggested for encouraging investment in treatments for neglected diseases and diseases of the world’s poor. At the moment, we spend 90 percent of our research dollars on diseases that affect 10 percent of the global population. Perhaps this is the best we can do, but would it not be nice to have a vigorous public debate on the subject?…

As for myself, I’ve already listed as one of my proposed high priorities for society over the next decade,

  • Patent system reform – to address aspects of intellectual property law where innovation and collaboration are being hindered rather than helped

Boyle’s book is a great contribution to the cause of finding the best “sweet spot” balance between intellectual property and the public domain.  It deserves to be very widely read.

Footnote: Many thanks to Martin Budden for drawing my attention to this book.

16 December 2009

What’s in a name – pirate?

Filed under: brand, democracy, Intellectual property, openness, piracy — David Wood @ 7:24 pm

I’ve been taking a look at the website for the UK Pirate Party.

There’s quite a lot there which strikes a chord with me.  Here are some extracts:

The world is changing. The Pirate Party understands that the law needs to change to match the realities of life in the 21st century…

Reform copyright and patent law. We want to … reduce the excessive length of copyright protection… We want a patent system that doesn’t stifle innovation or make life saving drugs so expensive that patients die…

Ensure that everyone has real freedom of speech and real freedom to enjoy and participate in our shared culture…

The internet has turned our world into a global village.  Ideas can be shared at incredible speed, and at negligible cost.  The benefits are plain to see, but as a result, many vested interests are threatened.  The old guard works hard to preserve their power and their privilege, so we must work hard for our freedom.  The Pirate Party offers an alternative to the last century’s struggles between political left and political right.  We are open to anyone and everyone who wants to live in a fair and open society…

The Pirate Party UK offers a new way to tackle society’s problems, by releasing the potential of ideas, at the expense of corporate monopolies and the interests of a controlling state…

I ask myself: should I sign up to support this party – hoping to help it break the mould in UK politics?

I’m tempted.  But three things hold me back.

First, there are others items listed as priorities on the Pirate Party website, which seem much less important to me.  For example, I’m sympathetic to looking at the ideas “to legalise non-commercial file sharing”, but that hardly seems a black-and-white “no-brainer” deserving lots of my attention.  It’s not a principle I would nail to the mast.

Second, I wince at the description on the website of “the corrupt MPs who hold our nation’s cultural treasures to ransom, ignore our democratic wishes and undermine our civil liberties”.  I think this paints altogether too negative a view of existing UK politicians.  I’d rather find ways to collaborate with these existing MPs, rather than to out them and oppose them as “corrupt”.

Third, I’m thoroughly unesasy with the name “Pirate”.  This word has connotations which I think will prevent the party from “crossing the chasm” to gaining sufficient mainstream support.  Names are important.  If the party were called something like “The open party” rather than “The pirate party”, I suspect I (and many others) would be quicker to offer encouragement.

31 August 2008

Intellectual property and open source

Filed under: books, GPL, Intellectual property, Open Source — David Wood @ 7:17 pm

I’ve just finished reading a third book, within two months, on the topic of open source licensing. The three books are:

  1. Heather Meeker’s “The Open Source Alternative: Understanding Risks and Leveraging Opportunities” – which I reviewed here;
  2. Lawrence Rosen’s “Open Source Licensing: software freedom and intellectual property law” – which I reviewed here;
  3. Van Lindberg’s “Intellectual property and open source: a practical guide to protecting code“.

My headline summary is that all three books are well worth reading. They overlap to an extent, but they come at their shared subject from very different viewpoints, so each book has lots of good material that you won’t find in the others.

Van Lindberg targets his book at software engineers. He uses many analogies between legal concepts and deeply technical software engineering concepts. For example (to give a flavour of many of the clever pieces of writing in the book):

“One way to think about private goods is to analogize them to locks or mutexes in a multithreaded program. A number of different threads may want to use a protected resource, but control of the lock around the resource is rivalrous…”

Somewhat unexpectedly, the first half of the book hardly mentions open source. There’s good reason for this. The first seven chapters of the book cover the basic principles of intellectual property (IP), including patents, copyrights, trademarks, trade secrets, licences, and contracts. I found the very first chapter to be particularly engrossing, as it set out the philosophical foundations for IP. Van Lindberg highlighted the utilitarian justification for IP, in terms of legal measures to counter what would otherwise be two sorts of market failures:

  • The cost of creating knowledge is high, but the cost of consuming it is low…. Therefore there is a societal incentive to not create as much knowledge as we would ideally like to have” (hence the utilitarian rationale for copyright)
  • Secrets are more valuable to you personally, but shared knowledge is more valuable to society…. The resource is valuable to you because you have a key, but it is worthless to everyone else” (hence the utilitarian rationale for patents).

As I said, the very first chapter was particularly engrossing, but I thought the other early chapters dragged a bit. Although all the material was interesting, there were rather too many details for my liking.

Chapter eight (“The economic and legal foundations of open source software”) went back to philosophical principles, in an attempt to pinpoint what makes open source different from proprietary software. The difference, according to Van Lindberg, is that:

  • Proprietary software is driven by corporate business goals (which inevitably involve profit-maximisation, and therefore – he claimed – a tension between what’s best for the customers and what’s best for the shareholders)
  • Open source software is driven by cooperative goals, in which the goals of the customers have primacy. (Note the difference between the similar-looking words corporate and cooperative.)

This chapter also runs a pretty compelling extended comparison between proprietary software and open source software, on the one hand, and banks and credit unions, on the other hand. Again, the first member of each pair is driven by shareholder goals, whereas the second member of each pair is driven by customer goals (the legal owners are the same people as the customers).

The primary task of open source licences, according to this analysis, is to support cooperation. In more detail, Van Lindberg says that open source licences are intended to solve the “Programmer’s Dilemma” version of the famous and well-known “Prisoner’s Dilemma” problem from game theory:

“Open source licences serve two functions in a game-theoretic context. First, they allow programmers to signal their cooperative intentions to each other. By placing their code under a licence that allows cooperation, programmers indicate to their peers that they are willing to participate in a cooperative solution. Second… licences are based in copyright law, which allows the original developer to dictate (to some extent) the users and uses of his code. The legal penalties associated with copyright violations change the decision matrix for other programmers, leading to a stable cooperative (and optimal) solution.”

This (like everything else in the book) is thought-provoking. But I’m not fully convinced. I think this puts too much importance onto the licence aspect of open source. Yes, picking a good licence is important – but it’s insufficient to guarantee the kind of cooperative behaviour that will make an open source project a real success. And as I’ve argued elsewhere, picking the right licence is no guarantee against the software fragmenting. But despite this quibble, I still think the ideas in this chapter deserve wide readership.

The second half of the book changes gear. With the first eight chapters having carefully outlined the underlying legal framework, the remaining six chapters walk through the kind of real-life IP concerns that will face someone (whether an individual developer, or a company) who wants to become involved in an open source project:

  • Issues with standard employment contracts that probably specify that everything you work on – even in your spare time – belongs to your company, and which you therefore are not free to assign to an open source project
  • General guidelines on choosing between some of the more popular open source licences
  • Legal complications over how to accept patches and other contributions, from outsiders, into your project
  • Particular issues with the GPL
  • Reverse engineering
  • Creating a non-profit organisation or foundation (recommended if your project becomes larger).

There’s lots of good advice here. Every chapter of this part of the book has important material – but I was slightly disappointed with some parts. For example, given the careful attention to patents in the first half of the book (where two chapters were devoted to this topic), I was expecting more analysis of how some of the major open source licences differ in their approach to patent licences and patent retaliation clauses. On reflection, that’s something that the other two books (ie by Meeker and Rosen) handle better.

The chapter on the issues with the GPL confirmed and extended the opinion about that licence which I’d picked up from my previous reading: the interpretation of the GPL is subject to great uncertainty over ambiguities. The chapter includes a lengthy “Questions and answers” section, to which the answer to nearly every question is “Maybe” or “It depends”. (Apart from the last question, which is “Can I depend on the answers in this Q&A to keep me out of trouble?”; the answer to this is “No, this is our best understanding of copyright law as it stands right now, but it could change tomorrow – and nobody really knows…”)

Giving more evidence for this view of the ambiguities surrounding the GPL, Van Lindberg mentions an essay by Matt Asay, “A Funny Thing Happened on the Way to the Market“. Here’s an extract from that essay:

“I asked two prominent representatives of the Free Software Foundation – Eben Moglen, general counsel, and Richard Stallman, founder – to clarify thorny issues of linkage to GPL code, and came up with two divergent opinions on derivative works in specific contexts…”

“…it is telling how widely their responses diverge – there appear to be no definitive answers to the question of what constitutes a derivative work under the GPL, not even from the holders of the licenses in question.”

This looks decisive, but it could be argued that this quote from Matt Asay is itself misleading, since Matt’s article goes on to state that:

“Fortunately, as I will detail below, this issue has largely gone away, as it has become accepted practice to dynamically link to GPL code [without that code becoming part of the GPL program]. Linus Torvalds helped to build momentum for such a reading of the GPL. While some argue that kernel modules, including device drivers, must be GPL, Torvalds has stated: This [GPL] copyright does *not* cover user programs that use kernel services by normal system calls – this is merely considered normal use of the kernel, and does *not* fall under the heading of ‘derived work.’

However, Van Lindberg seems to be right that the official FAQ about the GPL, maintained by the Free Software Foundation, advocates a stricter interpretation:

“Q: Can I release a non-free program that’s designed to load a GPL-covered plug-in?

“A: It depends on how the program invokes its plug-ins. For instance, if the program uses only simple fork and exec to invoke and communicate with plug-ins, then the plug-ins are separate programs, so the license of the plug-in makes no requirements about the main program.

If the program dynamically links plug-ins, and they make function calls to each other and share data structures, we believe they form a single program, which must be treated as an extension of both the main program and the plug-ins. In order to use the GPL-covered plug-ins, the main program must be released under the GPL or a GPL-compatible free software license, and that the terms of the GPL must be followed when the main program is distributed for use with these plug-ins.

“If the program dynamically links plug-ins, but the communication between them is limited to invoking the ‘main’ function of the plug-in with some options and waiting for it to return, that is a borderline case.

Using shared memory to communicate with complex data structures is pretty much equivalent to dynamic linking.”

Do these ambiguities over the GPL really matter? It’s hard to be sure, but I’m personally glad that the Symbian Foundation plans to adopt a licence – the EPL – which avoids these issues.

I’m also glad to have taken the time to read this book – it’s helped my understanding grow, in many ways.

Footnote: My thanks go to Moore Nebraska for drawing my attention to the Van Lindberg book.

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