Free and Open Source Software

Law is Code?

By: Ayelet, dulles

Introduction

Precis

Fundamental Question: What can we learn from the world of free and open source software (FOSS) that might translate into the legal world? That is, what are the characteristics of FOSS that make it work so well, and can we learn lessons from FOSS that will help us improve the law?

The class first examines FOSS and attempts to discern the qualities, both procedural and substantive, that make it unique, successful, or unsuccessful. We then look for examples of projects that rely on these characteristics to make themselves more participatory. From there, we conjecture on what the world of "open source law" might look like and the associated problems.

Materials

Required Reading

• 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 Reading

• 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.

Guest

Benjamin Mako Hill will be joining us. Mako is technology and IP researcher and activist, and a PhD candidate at the MIT Sloan School of Management. His experience with FOSS projects, especially Debian and Ubuntu, will be invaluable in helping us understand FOSS. (XXX flesh this out)

Discussion

Introducing Free and Open Source Software

Free software, in this course, means software libre. That is, there exists software that costs no money ("software gratis"), but there also exists software that has no restrictions ("software libre"). This software is defined by the four freedoms of software, as written by the Free Software Foundation:

• The freedom to run the program, for any purpose (freedom 0).
• 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.
• The freedom to redistribute copies so you can help your neighbor (freedom 2).
• 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.

Many people are familiar with the big names in the free software world: Linux, Firefox, OpenOffice, and some of us are likely familiar with the SourceForge system. These projects have several characteristics in common:

• Public access to code
• Public authority to alter the code
• Public right to distribute the code, modified or not
• Strong communities around the software

Free and Open Source software dominates many areas of the technology landscape. The Apache webserver, for example, holds a commanding 66% share of the webserver market. Open source web browsers also account for an incredible chunk of the browser market. At first blush, the existence of FOSS seems perplexing. People regularly pay money for software, why would a group of hackers donate so much time to writing software for free? Moreover, should it perplex us that free software competes so well against commercial software?

(XXX a brief history of FOSS (we could use kelty or JZ))

(XXX a brief discussion of how licenses are used to keep the software free)

Characteristics of FOSS

We discerned three separate ways to think about the motivations that underlie FOSS. Gift economics, traditional economics, and cultural analysis provided us with distinct insights into the world of FOSS. Importantly, we believe that these analyses do not conflict with each other, but rather they observe the same phenomenon from different points of view and, largely, do not conflict with one another.

In The Gift, Hyde identifies a gift economy as one that demonstrates particular qualities in the exchange of value. Notably, that wealth exists in the giving of the gift, rather than in the trade or possession of the gift, which cannot become personal property. Essential to the theory of gift economics, "the gift must always move". Hyde considers the academic community as a gift economy. That is, the academic's research, while in a sense her own discovery or creation, does not belong to her personally. In publishing, referencing, and building upon the research of others in the community, the academic develops an intellecutal commons, and each act of research and publication is a gift that adds to the commons.

Similarly, FOSS can be understood as a gift community. Similar to the intellectual commons of the academic institution, the open source code repository is an intellectual commons because it represents the common intellectual work of the developers. More precisely, it is the intellectual product of the FOSS developers.

This analogy suggests that truth seeking is a key concept in understanding the motivations in FOSS. That is, we understand the academic to be in pursuit of the truth of their field, so we might understand the FOSS developer as also seeking a kind of truth. The "truth", in FOSS, may be a program of the highest quality and utility. That is, well structured, organized, largely bug-free, intuitive, useful, and portable. Each contribution to the code base is akin to a publication by the researched, whose contribution to the comomns marks progress towards the ultimate goal.

The analogy also suggests that reputation is valued in the FOSS community in much the same way that it may be valued by academics.

Lerner's paper elucidates the nexus between reputation and traditional market economics. He identifies reputation as a capitalist incentive. The developer who makes a name for herself in the FOSS world has all the better a resume to apply towards finding gainful employment as a developer. He also identifies the utility of the alumni effect, saying that developers who all become familiar with a common code base (e.g., glibc, the GNU C Library) have a competative advantage in later programming tasks. Furthermore, as more companies rely on the same common tools, such as a Linux OS underneath their custom product, they find that dedicating some of their staff's time towards improving Linux is in their best interest. Fortunately for Linux users everywhere, the architects behind the GPL License have ensured that everybody can benefit from a sort of enforced cooperative attitude.

Lerner also identifies other characteristics that are notable in FOSS. Firstly, modularity is valued. That is, it must be possible for developers to work on different parts of the code base without inadvertently interfering with each other. Interesting new problems are also valued by developers, consisteng with the reputation enhancement incentive. Essential to this, credit for authorship is valued. Lastly, Lerner identifies a skew pattern: a small number of people contribute the bulk of the code. This can be understood as an expression of the 80-20 principle.

(XXX identify cultural norms and the cultural motivations.

Original text from the syllabus 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.) Source from etherpad: Mako describes his own attraction to FOSS. "In tenth grade, GNU/Linux and the free software movement was my first exposure to radical social and political ideology and actions--I was transfixed." (http://mako.cc/writing/unlearningstory/StoryOfUnlearing.html)

Source from etherpad: In his book, Two Bits: The Cultural Significance of Free Software <insert link to two bits>, Chris Kelty goes so far to see in the social practices that evolved around the creation of free softwarethe possibility for “new forms of life”. This potential stems from his understanding of open source communities as “recursive publics”. A recursive public continually modifies the technical, legal, practical, and conceptual means of its own existence as a public. This continuous transformation of its own infrastructure allows the open-source community to be independent of other forms of constituted power and pose alternatives to it.

Source from etherpad: retaining the "old school unix hacker" culture; fighting the behemoth; end of copyright; community of geeks; egoboo; ethical obligations to distribute (Stallman)

)

(XXX new way of economic production - Yochai Benkler)

(XXX embed these twitter quotes above...

culture and personal satisfaction:

http://twitter.com/vranieri: "I did it for fun (and for the challenge)" http://twitter.com/leejbaker: some psyc research shows that external motivation can ruin intrinsic motivation (turns "fun" into "job")

cultural identity: http://twitter.com/debbierosenbaum: "I wonder if people do it as a way to show off nerdiness? disprove any n00b questions?" http://twitter.com/gwbstr: "How about the cultural factor. For instance, how many of the FOSS contributors in the room have stickers on their laptops vs. others?"

Economic incentives: a critique by http://twitter.com/gwbstr :" If people contribute to free/open source software for fun, is this participation limited to people who can afford to work for free?"

   http://twitter.com/mchua:"people get paid to make free software, and use it as a way to build portfolios for jobapps too".
   http://twitter.com/shubhamm: ""starving artists," poets, etc work just for passion, i guess, which we've never really puzzled over. why not the same for programmers"
       answer from http://twitter.com/debbierosenbaum: "but that's not truly the case. that's why we have copyright laws. to protect innovation by artists, right?"

http://twitter.com/arjthelarge: "Problem with art analogy: contributions of code are not self-contained. It's mostly bug-reporting, w/few people doing the major work"

Functional utility: http://twitter.com/mithridatic: "I was a purely function-oriented open source code modifier, and I think many others are as well: they simply want a piece of software to do something new which serves their needs, and to take advantage of peer review" http://twitter.com/mchua: "I was told in (engineering) college to license my class projects as free software for portfolio goodness, but Olin is weird." http://twitter.com/megerman: "worked on open source software at an academic institution without really thinking why. It seemed like the right default state."

)

(XXX make sure to talk about all of these:

• beyond motivations?
• What characterstics of software make the open source model viable or successful?
  • Process charactersitcs
    • Enabling, not coercion
    • Debian's government as reactive, rewarding developers, bottum-up, minimalist (excerpt from Debian article)
    • Inate democratic principles written into the structure
    • Developers value group cohesion.
  • Substance characteristics
    • Modularity is very good. E.g., Netscape (bad), Linux (good)
    • Niche markets are great places for FOSS
    • Where big industry players dominate, FOSS attempts to attack

The Bridge Between Open Source Characteristics and the Not-Software World

• (XXX finish this) Wikipedia as a bridge that takes the FOSS ethos to the content community. see also, Wikipedia "law" - the internal creation of legal regulation embedded in formal and official rules that are being inforced by the community.

Open Source Law

both meanings:

Legal Support for the FOSS Model

using law to support FOSS: The idea that the current legal norms are not supporting FOSS and are based on proprietary assumptions.

• lessig's remix
• possible problems with direct financing of FOSS projects: http://mako.cc/writing/funding_volunteers/funding_volunteers.html
• GPL as a license designed to support FOSS
  • Moglen's article
  • history of the GPL: http://www.free-soft.org/gpl_history/
  • why CLISP in under GPL: http://clisp.cvs.sourceforge.net/*checkout*/clisp/clisp/doc/Why-CLISP-is-under-GPL

why does FOSS need licensing?

• http://twitter.com/GwenHochman: why did the sharing principles become licenses? were there abuse problems without the force of law?
• http://twitter.com/Jpfishman: I would think that licenses are helpful just to remove any doubt about the status of your work.
• http://twitter.com/mchua: maybe it needed to be explicitly stated legally to cause people to switch to the sharing paradigm? (rather than abuse)
• http://twitter.com/danray: Yeah, but do real people (≠ lawyers) think like that? I'm really curious what happened, but I bet it was an actual event
• http://twitter.com/mchua: it was a real event, involving stallman, emacs, and the gpl.

Applying Open Source Methods to the Creation of Law

ideals encapsulated:

• inefficient or unjust law ≈ buggy code. eric s. raymond: with enough eyeballs, are bugs are shallow.
• participatory democracy – but will people actually want to be engaged? zittrain: if there's participation, might adherance to the law increase?
• efficiency by being flexible
• experimentation (links to explimentary democracy)
• deliberative democracy

problems:

• 80/20: 80% of the law will be written by 20% of the people. is this bad? is it actually an improvement?
• legitimacy - should participant collaboration be limited only to private law since it lacks democratic legitimacy as to public law;
• formal training in legalese. after all, statutory construction can turn so wildly on pretty minor issues. otoh, much foss code is submitted full of bugs at first, so maybe it's just part of thee process
• stability
• protecting minority voices, the lack of mechanisms in Congres like filibusters that would otherwise help

class tweets:

• http://twitter.com/leejbaker: open source law would fork many many times. who gets the final call on what becomes THE law?

possible examples and uses of FOSS principles to creation of law:

1. using web 2.0 to increase tranperancy
   • one version of open law is structured not to give people direct participatory roles in writing the laws, but rather to increase transparency. Such projects are focused on allowing the citizens easy access to bills as they go through Congress, show who's money is involved, notice and comment method and allowing citizens to suggest ideasetc.

There are several examples for this sort of work:

1. • http://public.resource.org/ : Carl Malamud project aims to make the case law and codes of the United States of America (state and federal) freely accessible in a public domain archive. (see also http://radar.oreilly.com/archives/2007/08/carl-malamud-ta.html)
   • http://www.opencongress.org/: OpenCongress is a project of the Sunlight Foundation and PPF - where readers can track and comment on bills and issues
   • Citizen's briefing book - insert link and description
   • my society - UK - http://www.mysociety.org/projects/
2. participatory model
   1. collaborating on an existing adjudication
      • openlaw - http://openlaw.org/: he Openlaw project asked "Can we litigate

legal/technical questions in an open-source collaborative manner?"  Their
answer, as formulated by Prof. Seltzer, was a qualified "not directly, but it can help through other means."  We used a sourceforge-like suite of tools to discuss cases, solicit evidence, and ultimately write some amicus briefs and comments.It also helped to galvanize some non-lawyer activists around copyright
reform.

1. 1. • http://joelfightsback.com/
   2. creating law using FOSS model
      • Wikipedia's internal legal system: Wikipedia has been able to create a highly complex system of legal regulation in an open source. Officially, there are forty-two policies (mainly governing behavior and content) and 356 specific guidelines (mainly governing style and formatting) which all users are expected to follow if they wish to contribute to the encyclopedia. Its arbitration committee, which generates norms and also inflicts punishments, hears cases using an adversarial method which includes submitting evidence.

see: R. Stuart Geiger, There is No Cabal: An Investigation into Wikipedia's Legal Subculture: http://www.stuartgeiger.com/wordpress/academic-works/2007/05/31/there-is-no-cabal-an-investigation-into-wikipedias-legal-subculture/.

1. 1. • David Hoffman & Salil Mehra, Wikitruth Through Wikiorder (forthcoming, 2009): http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1354424.
      • the internal arguments inside wikipedia - which are detectable by using the disscussion pages -shows that actually there is the same search for legitimacy and creating balanced procedures and norms (insert examples from the vandalism wiki page). <link to vandalism talk page>
      • http://www.fantasycongress.com/fc/ - Fantasy Congress is an online fantasy simulation where "citizens" draft members of the United States House and Senate, and keep track of their participation within the U.S. Congress. Actions, especially within the process of making and amending pieces of legislation, of a player's drafted congresspersons are recorded and rated as a cumulative total amount of points against other players.

In Class Experiment

In class, we initiated an experiment of collaborative law editing. The experiment was intended 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 broke up into groups of roughly 8 people and, for ten minutes, co-edited the bill of rights. Each group edited its copy of the document simultaneously, through their individual interfaces.

The result of the exepriment was obvious indeed - most of the groups have ridiculed the bill of rights. (not unlike this Onion article.)

Amendment 0

A robot may not injure a human being or, through inaction, allow a human being to come to harm.

A robot must obey orders given to it by human beings, except where such orders would conflict with the above.

A robot must protect its own existence as long as such protection does not conflict with the above.

Amendment I

No law shall violate the right to the free practice and expression of religion, speech, press, and expression. “No law” is here defined as “absolutely no law,” rather than “some laws, so long they are not really bad.”

Amendment II

A well regulated food fight, being necessary to the security of a lunch room, the right of the people to keep and bear skittles, shall not be infringed.

Amendment III

No soldier shall at any time be quartered on foreign soil, the military existing only for self-defense.

Amendment IV

The right of the people to be secure in their persons, houses, cheezeburgers, lolcats, papers, and effects, against unreasonable searches and seizures of both their tangible property and information contained electronically therein, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

(Amendments V-VII weren’t really touched.)

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments (like death by execution) inflicted. No torture, or any tortured definition of torture that John Yoo, David Addington, or anyone within 6 degrees of separation of them can invent. Except if it is needed to stop an imminent nuclear attack. Or if Jack Bauer is involved.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. These rights also are not limited to those explictly stated in this document but include rights embodied by ideals of justice and liberty and lulz.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are preserved in the wiki and reserved to the states respectively, or to the Village People.

Amendment XI

TBA

Man, yall, who killed Amendment XI?

Amendment X.2

Everyone will have the right to define their own concept of existing, of meaning, of the universe and of the mystery of life.

Amendment XII

Pi is to be defined as 3 in the state of Indiana. Worked so well last time.

Amendment XIII

(was missing.)

Amendment XIV

“Freeze” commands shall be null and void in the lower 48 states. You can still freeze in Alaska. Except when playing Simon Says. Or Freeze tag

Amendment XV

Kill all humans, unless you’re a robot.

Amendment XVI

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