Free and Open Source Software

Topic Owners: dulles,Ayelet

Back to syllabus.

NOTICE: Others should be wary of treating this syllabus as complete until this notice has been removed. That is all. We're working very hard on firming up all the details as fast as we possibly can.

New formulation

Law is Code?

Stage One

We would like to begin by exploring the phenomenon of free and open source software (F/OSS, hereafter "free software") through three lenses:

• free software as a gift economy
• free software as a traditional market economy
• and free software as a culture shift.

The Hyde reading, which explores the gift economy of research, may be useful to elucidate the gift economics of free software. Although Hyde discusses the gift economics of acamedia, perhaps an analogy can be made between academic research and free software development. Perhaps free software developers are akin to science academics who occasionally get hired into the private research and development market (private software corporations).

In the Lerner reading, we explore the success of free software under traditional economic analyses. We would like to use this to determine what we truly believe the factors are which make free software a viable development process, and to determine why a particular free software project might succeed or fail.

Using the Kelty reading, we hope to elucidate the cultural shifts that occur in free software.

Stage Two

Given what we know about free software ideology, and the success of the open source model in the non-software world (e.g., Wikipedia and other crowd-sourcing projects), why were the GPL (v2 and v3) development processes so marked by a centralized authority? Would it have been perfectly reasonable to throw up a GPL wiki with its own bureaucrat system (akin wo Wikipedia's), and let the world write its license? If, as Eben Moglen suggests, the creation of GPL v3 was something like the creation of a multiparty transnational treaty to govern the future of the free software movement, why not develop it using the very means that are so successful in creating free software?

Stage Three

TODO: write up stage 3 wrt open source law

Experiment

TODO: write up experiment

Guiding Questions

As we proceed, these will be our guiding questions... (TODO firm it up!)

What is FOSS and where is it going?

1. What are the characteristics of an FOSS project that make it successful?
   • Examine the project's cultural and economic properties
2. What are the characteristics of software that make the FOSS method viable?
   • Examine the cultural and economic properties of FOSS
3. Where is FOSS going from here? how is it changing?
   • Writings that try to explain why FOSS actually follows regular market method to make profit.
   • Greater success outside of the movement (implementation in corporations and the government) - today everybody claim they are free.
   • New hybrids of free and proprietary.

Could FOSS method be used to create better law?

1. Why, then, did Stallman take such a heavy hand in GPLv2, Moglen in GPLv3?
   • Again, consider the economic and cultural properties of GPL v2, v3.
2. As between two parties bargaining at arm's length, private law (contracts) is akin to FOSS development. Creating a license for the FOSS world is like writing a multilateral treaty for the whole world of software developers. Moglen. so why not approach it just like any other community-built software project? Why use the [benevolent] authoritarian model? In answering this question, consider that other open source-like projects (Wikipedia), which may be termed projects in the method of the intellectual commons, have been greatly successful.
3. Generally, is it possible to approach law -- even governance generally --- under the FOSS method?

Readings

• The Gift, by Lewis Hyde. Chapter Five "The Gift Community" (p. 96-120).
• Some Simple Economics of Open Source, by Josh Lerner.
• Faculty Presentation 9/11/2008, by Eben Moglen. (skim)
• Two Bits, by Christopher Kelty. Chapters 3 and 6.

Old formulation

Fundemental Questions

Why is free software created? Why does it succeed? How can we secure and promote free software?

Precis

Free and is Speech. Free as in Beer.

Before any discussion of free software, it's important to make sure everybody understands the term. There are two meanings of "free" at work. Free software has zero monetary cost. Nothing. Zip. Nada. It is software gratis. Free software is, in some sense, freeware.

But free software is also software libre. This means that it is not tied down by the usual intellectual property rules. Freedom breaks down into four elements.

1. The freedom to run the program, for any purpose (freedom 0).
2. The freedom to study how the program works, and adapt it to your needs (freedom 1). Access to the source code is a precondition for this.
3. The freedom to redistribute copies so you can help your neighbor (freedom 2).
4. The freedom to improve the program, and release your improvements (and modified versions in general) to the public, so that the whole community benefits (freedom 3). Access to the source code is a precondition for this.

Gift Economics

Free software appears to not obey the usual rules of market based economies. Many of those who contribute to the codebase of large free software projects, for example, are unpaid amateurs working in their free time. We propose that free software is properly understood, in part, using the mechanics of gift economies rather than market economies. These are economies which value reputation over profit, where value is had in the giving, not in the taking, and where the wealthiest are those who have given away the most. Certainly some developers, such as Linus Torvalds, Alan Cox, and Richard Stallman, have earned their share of fame and reputation.

On the other hand, perhaps it's not proper to think of free software as a classical gift economy like those outlined by Lewis Hyde in The Gift (assigned). In a digital world, a developer who gives away his code still has access to his code. Software replicates. Does this have any bearing on the analysis of free software as a gift economy?

Market Economics

Capitalism surrounds free software. Linux distributors such as RedHat operate in the market economy even though their products are free, depending on a services based business model. Furthermore, not all developers are unpaid amateurs. Some are actually paid to do it. It's not uncommon for a commercial software developer to dedicate part of his work-time to developing free software, especially when their companies depend on that software and have an interest in it's development.

As a capitalist enterprise, why would a company spend its developers' time on contributing to free software? It's true that many commercial enterprises rely on free software, so there's a clear collective interest in its development. But in dollars and cents, is it really worth it for a software company to let its developers spend part of their time writing for the Linux kernel?

Planned Evolution

In addition to the usefulness of gift and market economies as tools for understanding free software, it may be useful to consider the movement as a planning or staged happening. Prof. Eben Moglen of the Software Freedom Law Center asserts that free software as a movement is part of a larger planned development of the way we will interact in a digital future. Certainly this is represented in the philosophy of the Free Software Foundation. Yet GNU/Linux, arguably the most successful free software project, was founded by a man not particularly fond of ideology, whose initial motivations seemed to relate more to hobby than philosophy.

Breaking Down the Investigation

1. Motivations: Why contribute to free software as an unpaid hobbyist or as a corporation? Gift economics? Market economics? Planned evolution?
2. Success: Free software is successful - why?
3. The Law: Given what we can discern about free software's success, how can the American IP regime alter to protect and encourage free software? How do these tweaks highlight the three motivations outlined?

Guest Wish-list

• Mako - as an insider from the free software movement.

Readings

• The Gift, by Lewis Hyde. Chapter Five "The Gift Community" (p. 96-120).
• The Gift Economy and Free Software, by Jem Matzan.
• Some Simple Economics of Open Source, by Josh Lerner.
• GNU Public License version 3.
• Faculty Presentation 9/11/2008, by Eben Moglen. (skim)
• Economics of Open Source Software, by Eric Lee Green.

Supplemental (non required) Readings

• Philosophies of Free Software and Intellectual Property, by The Famous Brett Watson.
• Homesteading the Noosphere, by Eric S. Raymond.
• The Cathedral and the Bazaar, by Eric S. Raymond.

Class Twitter Conversation

In addition to the listserv, which will doubtlessly allow us to communicate our thoughts between classes and develop our discussion, we propose to use Twitter to create a simultaneous mode of discussion designed to be informal and strongly conversational. Because Twitter limits entries to 140 characters, the service should naturally lend itself to such discussion.

In order to tie our tweets together, we can use the @hashtags system. Documentation 1 2. We propose to use the #iif tag. Students may read the hashtag using the hashtags.org system or at the Twitter search page. However we recommend that students follow the #iif hashtag using the RSS feed available at hashtags.org. The RSS feed from search.twitter.com unfortunately drops the username originating the tweet. Students are encouraged to investigate other Twitter client applications and RSS readers in order to make it exceptionally easy to read the #iif tweets and to post updates, making the whole endeavor something akin to a chatroom without requiring that we all log in to IRC.