Free and Open Source Software

Topic Owners: dulles,Ayelet

Back to syllabus.

Law is Code?

Special guest: Benjamin Mako Hill (biography)

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 cultural movement.

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 academia, 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. Lerner's analysis also challenges us to think critically about application of a pure gift economic perspective on free software. In reality, might the wealth and incentives in the gift economy analysis not easily collapse into a traditional market economic analysis?

Using the Kelty reading, we hope to elucidate the cultural shifts that occur in free software. Kelty relate to the geek culture as creating a "recursive public" - a public that constantly modifies its own existence as a public. We would like to see how radical is this modification really is, and how do this gets along with the economic explanations. Moreover, we will try to figure out the paradoxes of the FOSS movement (Stallman v. Raymond, elitism v. grass roots etc.) and to see how they shaped the FOSS movement.

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), is there still a difference between software and other products? we will try to look at the structural characteristics of software evolution to figure out how it is created.

We will also try to map the central place given to law in FOSS, by looking into the development of the the GPL license (v2 and v3, discussed in Kelty's book and Moglen's presentation) alongside the open software movement. How is licensing (as apposed to public domain) supposed to keep the software free? how should we think about the use of Usenet mailing lists as the way to create law?

Stage Three

From here, we'd like to try to think whether these methods could be applied to law. We want to turn Lessig's "code is law" formulation on its head and explore the open source development model as applied to software licenses - meaning to see if "law is code". This last section of the class broadens the scope of open source development and asks the class to entertain the idea of open source law. If law is merely that which circumscribes the world of possible actions - which makes the "code is law" formulation quite easy to understand -- and if the open source model has proven so successful in developing software (and encyclopedias), can it be abstracted into developing the law? Could we create licenses, for example, using a wiki?

Guiding Questions

During the entirely of the class, we will use these questions to focus our discussion along each point:

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?

Experiment

Our end of class experiment attempts merely to illustrate one possible, and quite literal, application of open development to law. At the Etherpad website we have set up several copies of the bill of rights. We will break up into groups of roughly 8 people and, for ten minutes, co-edit the bill of rights. Each group will work on the same copy of the document simultaneously, through their individual interfaces. At the end we will compare the revisions and consider (1) whether groups independently made the same sorts of changes, and (2) whether groups found it difficult to work on the documents. By this we hope to also illustrate whether the notion of "open source law" in the simplest implementation is possible and what problems it might encounter in a more complex implementation.

Here are the Etherpads:

• Pad 1
• Pad 2
• Pad 3
• Pad 4
• Pad 5

Assigned Material

Requried 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 (only pages 107-117) and 6.

Required Meddling

Everybody should come to class having spent a bit of time on OpenLaw and MySociety

Optional Readings

• Perspectives on Free and Open Source Software, MIT press 2007
• The Dynamics of Collaborative Innovation - A Berkman Center Luncheon Video of a talk by Ned Gulley and Karim R. Lakhani.
• Open Source as Open Law - a power-point presentation by Wendy Seltzer
• Legal Reseach 2.0: The Power of a Million Attorneys - an article created using the Wiki Legal Journal
• The Emergence of Governance in an Open Source Community, by O'Mahony and Ferraro.

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.