Two Bits Part 13

41 Calvin Mooers, in his 1975 article "Computer Software and Copyright," suggests that the IBM unbundling decision opened the doors to thinking about copyright protection.

42 Message-ID: [email protected]

43 Gosling's EMACS 264 (Stallman copied EMACS 84) is registered with the Library of Congress, as is GNU EMACS 15.34. Gosling's EMACS Library of Congress registration number is TX-3407458, registered in 1992. Stallman's registration number is TX-1575302, registered in May 1985. The listed dates are uncertain, however, since there are periodic re-registrations and updates.

44 This is particularly confusing in the case of "dbx." Message-ID: [email protected], Message-ID: [email protected], and Message-ID: [email protected]

45 Message-ID: [email protected]

46 A standard practice well into the 1980s, and even later, was the creation of so-called clean-room versions of software, in which new programmers and designers who had not seen the offending code were hired to re-implement it in order to avoid the appearance of trade-secret violation. Copyright law is a strict liability law, meaning that ignorance does not absolve the infringer, so the practice of "clean-room engineering" seems not to have been as successful in the case of copyright, as the meaning of infringement remains murky.

47 Message-ID: [email protected] AT&T was less concerned about copyright infringement than they were about the status of their trade secrets. Zimmerman quotes a statement (from Message-ID: [email protected]) that he claims indicates this: "Beginning with CCA EMACS version 162.36z, CCA EMACS no longer contained any of the code from Mr. Montgomery's EMACS, or any methods or concepts which would be known only by programmers familiar with BTL [Bell Labs] EMACS of any version." The statement did not mention copyright, but implied that CCA EMACS did not contain any AT&T trade secrets, thus preserving their software's trade-secret status. The fact that EMACS was a conceptual design-a particular kind of interface, a LISP interpreter, and extensibility-that was very widely imitated had no apparent bearing on the legal status of these secrets.

48 CONTU Final Report, http://digital-law-online.info/CONTU/contu1.html (accessed 8 December 2006).

49 The cases that determine the meaning of the 1976 and 1980 amendments begin around 1986: Whelan a.s.sociates, Inc. v. Jaslow Dental Laboratory, Inc., et al., U.S. Third Circuit Court of Appeals, 4 August 1986, 797 F.2d 1222, 230 USPQ 481, affirming that "structure (or sequence or organization)" of software is copyrightable, not only the literal software code; Computer a.s.sociates International, Inc. v. Altai, Inc., U.S. Second Circuit Court of Appeals, 22 June 1992, 982 F.2d 693, 23 USPQ 2d 1241, arguing that the structure test in Whelan was not sufficient to determine infringement and thus proposing a three-part "abstraction-filiation-comparison" test; Apple Computer, Inc. v. Microsoft Corp, U.S. Ninth Circuit Court of Appeals, 1994, 35 F.3d 1435, finding that the "desktop metaphor" used in Macintosh and Windows was not identical and thus did not const.i.tute infringement; Lotus Development Corporation v. Borland International, Inc. (942003), 1996, 513 U.S. 233, finding that the "look and feel" of a menu interface was not copyrightable.

50 The relationship between the definition of source and target befuddles software law to this day, one of the most colorful examples being the DeCSS case. See Coleman, "The Social Construction of Freedom," chap. 1: Gallery of CSS Descramblers, http://www.cs.cmu.edu/~dst/DeCSS/gallery/.

51 An interesting addendum here is that the manual for EMACS was also released at around the same time as EMACS 16 and was available as a TeX file. Stallman also attempted to deal with the paper doc.u.ment in the same fashion (see Message-ID: [email protected], 19 July 1985), and this would much later become a different and trickier issue that would result in the GNU Free Doc.u.mentation License.

52 Message-ID: [email protected]

53 Message-ID: [email protected]

54 See Coleman, "The Social Construction of Freedom," chap. 6, on the Debian New Maintainer Process, for an example of how induction into a Free Software project stresses the legal as much as the technical, if not more.

55 For example, Message-ID: [email protected]

56 See Message-ID: [email protected]

7. Coordinating Collaborations

1 Research on coordination in Free Software forms the central core of recent academic work. Two of the most widely read pieces, Yochai Benkler's "Coase's Penguin" and Steven Weber's The Success of Open Source, are directed at cla.s.sic research questions about collective action. Rishab Ghosh's "Cooking Pot Markets" and Eric Raymond's The Cathedral and the Bazaar set many of the terms of debate. Josh Lerner's and Jean Tirole's "Some Simple Economics of Open Source" was an early contribution. Other important works on the subject are Feller et al., Perspectives on Free and Open Source Software; Tuomi, Networks of Innovation; Von Hippel, Democratizing Innovation.

2 On the distinction between adaptability and adaptation, see Federico Iannacci, "The Linux Managing Model," http://opensource.mit.edu/papers/iannacci2.pdf. Matt Ratto characterizes the activity of Linux-kernel developers as a "culture of re-working" and a "design for re-design," and captures the exquisite details of such a practice both in coding and in the discussion between developers, an activity he dubs the "pressure of openness" that "results as a contradiction between the need to maintain productive collaborative activity and the simultaneous need to remain open to new development directions" ("The Pressure of Openness," 11238).

3 Linux is often called an operating system, which Stallman objects to on the theory that a kernel is only one part of an operating system. Stallman suggests that it be called GNU/Linux to reflect the use of GNU operating-system tools in combination with the Linux kernel. This not-so-subtle ploy to take credit for Linux reveals the complexity of the distinctions. The kernel is at the heart of hundreds of different "distributions"-such as Debian, Red Hat, SuSe, and Ubuntu Linux-all of which also use GNU tools, but which are often collections of software larger than just an operating system. Everyone involved seems to have an intuitive sense of what an operating system is (thanks to the pedagogical success of UNIX), but few can draw any firm lines around the object itself.

4 Eric Raymond directed attention primarily to Linux in The Cathedral and the Bazaar. Many other projects preceded Torvalds's kernel, however, including the tools that form the core of both UNIX and the Internet: Paul Vixie's implementation of the Domain Name System (DNS) known as BIND; Eric Allman's sendmail for routing e-mail; the scripting languages perl (created by Larry Wall), python (Guido von Rossum), and tcl/tk (John Ousterhout); the X Windows research project at MIT; and the derivatives of the original BSD UNIX, FreeBSD and OpenBSD. On the development model of FreeBSD, see Jorgensen, "Putting It All in the Trunk" and "Incremental and Decentralized Integration in FreeBSD." The story of the genesis of Linux is very nicely told in Moody, Rebel Code, and Williams, Free as in Freedom; there are also a number of papers-available through Free/Opensource Research Community, http://freesoftware.mit.edu/-that a.n.a.lyze the development dynamics of the Linux kernel. See especially Ratto, "Embedded Technical Expression" and "The Pressure of Openness." I have conducted much of my a.n.a.lysis of Linux by reading the Linux Kernel Mailing List archives, http://lkml.org. There are also annotated summaries of the Linux Kernel Mailing List discussions at http://kerneltraffic.org.

5 Howard Rheingold, The Virtual Community. On the prehistory of this period and the cultural location of some key aspects, see Turner, From Counterculture to Cyberculture.

6 Julian Dibbell's "A Rape in Cybers.p.a.ce" and Sherry Turkle's Life on the Screen are two cla.s.sic examples of the detailed forms of life and collaborative ethical creation that preoccupied denizens of these worlds.

7 The yearly influx of students to the Usenet and Arpanet in September earned that month the t.i.tle "the longest month," due to the need to train new users in use and etiquette on the newsgroups. Later in the 1990s, when AOL allowed subscribers access to the Usenet hierarchy, it became known as "eternal September." See "September that Never Ended," Jargon File, http://catb.org/~esr/jargon/html/S/September-that-never-ended.html.

8 Message-ID: [email protected]

9 Message-ID: [email protected]

10 Indeed, initially, Torvalds's terms of distribution for Linux were more restrictive than the GPL, including limitations on distributing it for a fee or for handling costs. Torvalds eventually loosened the restrictions and switched to the GPL in February 1992. Torvalds's release notes for Linux 0.12 say, "The Linux copyright will change: I've had a couple of requests to make it compatible with the GNU copyleft, removing the 'you may not distribute it for money' condition. I agree. I propose that the copyright be changed so that it conforms to GNU-pending approval of the persons who have helped write code. I a.s.sume this is going to be no problem for anybody: If you have grievances ('I wrote that code a.s.suming the copyright would stay the same') mail me. Otherwise The GNU copyleft takes effect as of the first of February. If you do not know the gist of the GNU copyright-read it" (http://www.kernel.org/pub/linux/kernel/Historic/old-versions/RELNOTES-0.12).

11 Message-ID: [email protected]

12 Message-ID: [email protected] Key parts of the controversy were reprinted in Dibona et al. Open Sources.

13 Steven Weber, The Success of Open Source, 164.

14 Quoted in Zack Brown, "Kernel Traffic #146 for 17Dec2001," Kernel Traffic, http://www.kerneltraffic.org/kernel-traffic/kt20011217_146.html; also quoted in Federico Iannacci, "The Linux Managing Model," http://opensource.mit.edu/papers/iannacci2.pdf.

15 Message-ID: [email protected] See also, Berners-Lee, Weaving the Web.

16 The original Apache Group included Brian Behlendorf, Roy T. Fielding, Rob Harthill, David Robinson, Cliff Skolnick, Randy Terbush, Robert S. Thau, Andrew Wilson, Eric Hagberg, Frank Peters, and Nicolas Pioch. The mailing list new-httpd eventually became the Apache developers list. The archives are available at http://mail-archives.apache.org/mod_mbox/httpd-dev/ and cited hereafter as "Apache developer mailing list," followed by sender, subject, date, and time.

17 For another version of the story, see Moody, Rebel Code, 12728. The official story honors the Apache Indian tribes for "superior skills in warfare strategy and inexhaustible endurance." Evidence of the concern of the original members over the use of the name is clearly visible in the archives of the Apache project. See esp. Apache developer mailing list, Robert S. Thau, Subject: The political correctness question . . . , 22 April 1995, 21:06 EDT.

18 Mockus, Fielding, and Herbsleb, "Two Case Studies of Open Source Software Development," 3.

19 Apache developer mailing list, Andrew Wilson, Subject: Re: httpd patch B5 updated, 14 March 1995, 21:49 GMT.

20 Apache developer mailing list, Rob Harthill, Subject: Re: httpd patch B5 updated, 14 March 1995, 15:10 MST.

21 Apache developer mailing list, Cliff Skolnick, Subject: Process (please read), 15 March 1995, 3:11 PST; and Subject: Patch file format, 15 March 1995, 3:40 PST.

22 Apache developer mailing list, Rob Harthill, Subject: patch list vote, 15 March 1995, 13:21:24 MST.

23 Apache developer mailing list, Rob Harthill, Subject: apache-0.2 on hyperreal, 18 March 1995, 18:46 MST.

24 Apache developer mailing list, Cliff Skolnick, Subject: Re: patch list vote, 21 March 1995, 2:47 PST.

25 Apache developer mailing list, Paul Richards, Subject: Re: vote counting, 21 March 1995, 22:24 GMT.

26 Roy T. Fielding, "Shared Leadership in the Apache Project."

27 Apache developer mailing list, Robert S. Thau, Subject: Re: 0.7.2b, 7 June 1995, 17:27 EDT.

28 Apache developer mailing list, Robert S. Thau, Subject: My Garage Project, 12 June 1995, 21:14 GMT.

29 Apache developer mailing list, Rob Harthill, Subject: Re: Shambhala, 30 June 1995, 9:44 MDT.

30 Apache developer mailing list, Rob Harthill, Subject: Re: Shambhala, 30 June 1995, 14:50 MDT.

31 Apache developer mailing list, Rob Harthill, Subject: Re: Shambhala, 30 June 1995, 16:48 GMT.

32 Gabriella Coleman captures this nicely in her discussion of the tension between the individual virtuosity of the hacker and the corporate populism of groups like Apache or, in her example, the Debian distribution of Linux. See Coleman, The Social Construction of Freedom.

33 Apache developer mailing list, Robert S. Thau, Subject: Re: Shambhala, 1 July 1995, 14:42 EDT.

34 A slightly different explanation of the role of modularity is discussed in Steven Weber, The Success of Open Source, 17375.

35 Tichy, "RCS."

36 See Steven Weber, The Success of Open Source, 11719; Moody, Rebel Code, 17278. See also Shaikh and Cornford, "Version Management Tools."

37 Linus Torvalds, "Re: [PATCH] Remove Bitkeeper Doc.u.mentation from Linux Tree," 20 April 2002, http://www.uwsg.indiana.edu/hypermail/linux/kernel/0204.2/1018.html. Quoted in Shaikh and Cornford, "Version Management Tools."

38 Andrew Orlowski, "'Cool it, Linus'-Bruce Perens," Register, 15 April 2005, http://www.theregister.co.uk/2005/04/15/perens_on_torvalds/page2.html.

39 Similar debates have regularly appeared around the use of non-free compilers, non-free deb.u.g.g.e.rs, non-free development environments, and so forth. There are, however, a large number of people who write and promote Free Software that runs on proprietary operating systems like Macintosh and Windows, as well as a distinction between tools and formats. So, for instance, using Adobe Photoshop to create icons is fine so long as they are in standard open formats like PNG or JPG, and not proprietary forms such as GIF or photoshop.

40 Quoted in Jeremy Andrews, "Interview: Larry McVoy," Kernel Trap, 28 May 2002, http://Kerneltrap.org/node/222.

41 Steven Weber, The Success of Open Source, 132.

42 Raymond, The Cathedral and the Bazaar.

43 Gabriella Coleman, in "The Social Construction of Freedom," provides an excellent example of a programmer's frustration with font-lock in EMACS, something that falls in between a bug and a feature. The programmer's frustration is directed at the stupidity of the design (and implied designers), but his solution is not a fix, but a work-around-and it ill.u.s.trates how debugging does not always imply collaboration.

44 Dan Wallach, interview, 3 October 2003.

45 Mitch.e.l.l Waldrop's The Dream Machine details the family history well.

8. "If We Succeed, We Will Disappear"

1 In January 2005, when I first wrote this a.n.a.lysis, this was true. By April 2006, the Hewlett Foundation had convened the Open Educational Resources "movement" as something that would transform the production and circulation of textbooks like those created by Connexions. Indeed, in Rich Baraniuk's report for Hewlett, the first paragraph reads: "A gra.s.sroots movement is on the verge of sweeping through the academic world. The open education movement is based on a set of intuitions that are shared by a remarkably wide range of academics: that knowledge should be free and open to use and re-use; that collaboration should be easier, not harder; that people should receive credit and kudos for contributing to education and research; and that concepts and ideas are linked in unusual and surprising ways and not the simple linear forms that textbooks present. Open education promises to fundamentally change the way authors, instructors, and students interact worldwide" (Baraniuk and King, "Connexions"). (In a nice confirmation of just how embedded partic.i.p.ation can become in anthropology, Baraniuk cribbed the second sentence from something I had written two years earlier as part of a description of what I thought Connexions hoped to achieve.) The "movement" as such still does not quite exist, but the momentum for it is clearly part of the actions that Hewlett hopes to achieve.

2 See Chris Beam, "Fathom.com Shuts Down as Columbia Withdraws," Columbia Spectator, 27 January 2003, http://www.columbiaspectator.com/. Also see David n.o.ble's widely read critique, "Digital Diploma Mills."

3 "Provost Announces Formation of Council on Educational Technology," MIT Tech Talk, 29 September 1999, http://web.mit.edu/newsoffice/1999/council-0929.html.

4 The software consists of a collection of different Open Source Software cobbled together to provide the basic platform (the Zope and Plone content-management frameworks, the PostGresQL database, the python programming language, and the cvs version-control software).

5 The most significant exception has been the issue of tools for authoring content in XML. For most of the life of the Connexions project, the XML mark-up language has been well-defined and clear, but there has been no way to write a module in XML, short of directly writing the text and the tags in a text editor. For all but a very small number of possible users, this feels too much like programming, and they experience it as too frustrating to be worth it. The solution (albeit temporary) was to encourage users to make use of a proprietary XML editor (like a word processor, but capable of creating XML content). Indeed, the Connexions project's devotion to openness was tested by one of the most important decisions its partic.i.p.ants made: to pursue the creation of an Open Source XML text editor in order to provide access to completely open tools for creating completely open content.

6 Boyle, "Mertonianism Unbound," 14.

7 The movement is the component that remains unmodulated: there is no "free textbook" movement a.s.sociated with Connexions, even though many of the same arguments that lead to a split between Free Software and Open Source occur here: the question of whether the term free is confusing, for example, or the role of for-profit publishers or textbook companies. In the end, most (though not all) of the Connexions staff and many of its users are content to treat it as a useful tool for composing novel kinds of digital educational material-not as a movement for the liberation of educational content.

8 Boyle, "Conservatives and Intellectual Property."

9 Lessig's output has been prodigious. His books include Code and Other Laws of Cyber s.p.a.ce, The Future of Ideas, Free Culture, and Code: Version 2.0. He has also written a large number of articles and is an active blogger (http://www.lessig.org/blog/).

10 There were few such projects under way, though there were many in the planning stages. Within a year, the Public Library of Science had launched itself, spearheaded by Harold Varmus, the former director of the National Inst.i.tutes of Health. At the time, however, the only other large scholarly project was the MIT Open Course Ware project, which, although it had already agreed to use Creative Commons licenses, had demanded a peculiar one-off license.

11 The fact that I organized a workshop to which I invited "informants" and to which I subsequently refer as research might strike some, both in anthropology and outside it, as wrong. But it is precisely the kind of occasion I would argue has become central to the problematics of method in cultural anthropology today. On this subject, see Holmes and Marcus, "Cultures of Expertise and the Management of Globalization." Such strategic and seemingly ad hoc partic.i.p.ation does not exclude one from attempting to later disentangle oneself from such partic.i.p.ation, in order to comment on the value and significance, and especially to offer critique. Such is the attempt to achieve objectivity in social science, an objectivity that goes beyond the basic notions of bias and observer-effect so common in the social sciences. "Objectivity" in a broader social sense includes the observation of the conceptual linkages that both precede such a workshop (const.i.tuted the need for it to happen) and follow on it, independent of any particular meeting. The complexity of mobilizing objectivity in discussions of the value and significance of social or economic phenomena was well articulated a century ago by Max Weber, and problems of method in the sense raised by him seem to me to be no less fraught today. See Max Weber, "Objectivity in the Social Sciences."

12 Suntrust v. Houghton Mifflin Co., U.S. Eleventh Circuit Court of Appeals, 2001, 252 F. 3d 1165.

13 Neil Strauss, "An Uninvited Ba.s.sist Takes to the Internet," New York Times, 25 August 2002, sec. 2, 23.

14 Indeed, in a more self-reflective moment, Glenn once excitedly wrote to me to explain that what he was doing was "code-switching" and that he thought that geeks who constantly involved themselves in technology, law, music, gaming, and so on would be prime case studies for a code-switching study by anthropologists.

15 See Kelty, "Punt to Culture."

16 Lessig, "The New Chicago School."

17 Hence, Boyle's "Second Enclosure Movement" and "copyright conservancy" concepts (see Boyle, "The Second Enclosure Movement"; Bollier, Silent Theft). Perhaps the most sophisticated and compelling expression of the inst.i.tutional-economics approach to understanding Free Software is the work of Yochai Benkler, especially "Sharing Nicely" and "Coase's Penguin." See also Benkler, Wealth of Networks.

18 Steven Weber's The Success of Open Source is exemplary.

19 Carrington and King, "Law and the Wisconsin Idea."

20 In particular, Glenn Brown suggested Oliver Wendell Holmes as a kind of origin point both for critical legal realism and for law and economics, a kind of filter through which lawyers get both their Nietzsche and their liberalism (see Oliver Wendell Holmes, "The Path of the Law"). Glenn's opinion was that what he called "punting to culture" (by which he meant writing minimalist laws which allow social custom to fill in the details) descended more or less directly from the kind of legal reasoning embodied in Holmes: "Note that [Holmes] is probably best known in legal circles for arguing that questions of morality be removed from legal a.n.a.lysis and left to the field of ethics. this is what makes him the G.o.dfather of both the posners of the world, and the crits, and the strange hybrids like lessig" (Glenn Brown, personal communication, 11 August 2003).

9. Reuse, Modification, Norms

1 Actor-network theory comes closest to dealing with such "ontological" issues as, for example, airplanes in John Law's Aircraft Stories, the disease atheroscleroris in Annemarie Mol's The Body Multiple, or in vitro fertilization in Charis Thompson's Making Parents. The focus here on finality is closely related, but aims at revealing the temporal characteristics of highly modifiable kinds of knowledge-objects, like textbooks or databases, as in Geoffrey Bowker's Memory Practices in the Sciences.

2 Merton, "The Normative Structure of Science."

3 See Johns, The Nature of the Book; Eisenstein, The Printing Press as an Agent of Change; McLuhan, The Gutenberg Galaxy and Understanding Media; Febvre and Martin, The Coming of the Book; Ong, Ramus, Method, and the Decay of Dialogue; Chartier, The Cultural Uses of Print in Early Modern France and The Order of Books; Kittler, Discourse Networks 1800/1900 and Gramophone, Film, Typewriter.

4 There is less communication between the theorists and historians of copyright and authorship and those of the book; the former are also rich in a.n.a.lyses, such as Jaszi and Woodmansee, The Construction of Authorship; Mark Rose, Authors and Owners; St. Amour, The Copywrights; Vaidhyanathan, Copyrights and Copywrongs.