The free and open source software (F/OSS) movement has influenced wider understanding of intellectual property rights by propagating three core sets of norms and practices:
1. The privileging of authorship over ownership, and the embrace of collective authorship.
2. The transformation of property law from an absolute imposition into a set of hackable rules which can be appropriated and reworked.
3. The reimagination of computer code as a form of political speech, and the wider corollary that places knowledge and technology as firmly political phenomena.
I will examine how these norms and practices were initially enacted within free software communities, codified into the wide array of alternative licenses, and ultimately exported out of the software realm into a wider cultural arena. Finally I will draw on the case study of Wikipedia to demonstrate how the three core ideals of shared authorship, law hacking, and code-as-speech have been successfully recreated in a non-software context.
Authors, Not Owners
Although free software has its roots in 1970s hacker culture, the closest thing the movement has to a genesis point is an announcement by Richard Stallman on 27 September 1983 launching the GNU project. The announcement opens with the words “Free Unix! […] I am going to write a complete Unix-compatible software system called GNU […] and give it away free to everyone who can use it. Contributions of time, money, programs and equipment are greatly needed.”i This text crisply captures a shift of emphasis that takes place in the early free software movement, which rejects ownership, but maintains a pronounced sense of authorship. The document tells us that while everyone will own GNU, Richard Stallman will be the author, and you too can be an author. The three sections which followed were entitled “Who Am I?”, “Why I must write GNU,” and “How You Can Contribute,” each one an assertion of the computer programmer’s agency. Later versions of this document, which evolved into the GNU Manifesto, were rich in legal, moral, and technical detail, but its early roots as a declaration of authorship are telling.
The GNU project flared into being at the collision point of two competing legal regimes, the late-Cold-War expansion of intellectual freedom, and the Reaganomic assertion of property rights. Again, the tension between authorship and ownership is clearly visible. Within the corporate and legal mainstream, the entrenchment of ownership was the far more visible trend. In the 1970s copyright was applied to software, in the 1980s patents were applied to algorithms, genes, and business practices, 1984 saw the incorporation of IP protection into US international trade agreements, and in the 1990s legal understanding of software started to mimic that of physical machines (Coleman, 2013: 67). In each case, software was being increasingly recognised as a commercial asset, to be bought, sold, and exploited by the owners, which for the most part were companies. “Freeware” and “shareware” programs circulated among computing enthusiasts, but their disruptive potential was unacknowledged. Even as the GNU project grew, it grew in parallel, off the radar of commercial rivals. Sociologist Thomas Streeter noted that “Stallman’s approach was so different as to be almost invisible” (Coleman, 2013: 73).
Right into the nineties the difference in culture ran deep. While the big names in commercial computing (Microsoft, IBM, Apple, Novell) were the asset-owning entities, the big names in free software were the personalities, authors, and agents of change: Richard Stallman, Linus Torvalds, Ted Ts’o, Eric Raymond, and Ian Murdock. Commercial personalities like Bill Gates existed, but their reputations were built on business acumen rather than programming prowess. Likewise, while the free software movement gradually organised itself around the GNU and Linux banners, they were communities of shared authorship, what Kelty calls “recursive publics,” rather than asset-owning entities (Kelty, 2008: 52-61).
The primacy of authorship was an intrinsic feature of the Linux community from its inception, as lines of authority ran (and still run) through reputation and perceived expertise, not ownership. As veteran Linux developer Stephen Tweedie described it, the community was “very, very much a meritocracy.” Atop that meritocracy, Linus Torvalds was the community’s initiator, coordinator, and undisputed originating author, a status which allowed him to steer the community through divisive debates by giving a blessing to one side of a potential fork (Moody, 2001: 84).
The Law Can Be Hacked
The ground-level collision of authorship and ownership was the catalyst for the seminal “hack” of copyright law, the license that Richard Stallman wrote for GNU EMACS in 1985-86, which later evolved into the GNU Public License (GPL). At the time Stallman was under fire for distributing software which included the text “Copyright (c) James Gosling” in the source code, and classing the same software as being “public domain” (Kelty, 2008: 193). The obvious contradiction of copyrighted code being included in a public domain package was made visible by the culture of attribution and transparency that exists within the free software movement – no effort was made to remove Gosling’s name from the code, and the source code (as distinct from the opaque binary file) was freely distributed. But that transparency didn’t bring with it legal clarity, which was blurred by the role of programmers like Fen Labalme, who had contributed code to the software which James Gosling had gone on to sell. As Kelty puts it, “Stallman was using code from Gosling based on permission Gosling had given to Labalme, but Labalme had written code for Gosling which Gosling had commercialized without telling Labalme [and] all of them were creating software that had been originally conceived in large part by Stallman” (Kelty, 2008: 197). Stallman set about writing a license that addressed the legal quagmire induced by such shared authorship.
Stallman’s initial “hack” of intellectual property law was simple, he transferred the copyright of all software under his control to the Free Software Foundation (which he founded in late 1985), and asserted that users had “equal rights to nonexclusive use of the software” (Kelty, 2008: 205). This was a hack in many senses – it was a quick and crafty solution – it made use of what was immediately to hand, and it subverted a legal system away from its intended purpose. Instead of confronting copyright’s legal restrictions, Stallman adopted and repurposed those restrictions in order to protect, rather than inhibit, the non-commercial sharing of software.
Users of GPL software were free to refashion and repurpose the source code in any way, so long as they released the derivative work with the same freedoms. The success which followed relied on the distinct affordances of software. Like most intellectual property and creative content, software is hugely influenced by other software, new ideas and styles fall in and out of practice in waves of trend and fashion. But unlike other fields, in software that influence is marked cleanly and indelibly into the source code, a genetic stamp. Furthermore, software is built in a rich ecosystem of overlapping layers, dependencies, plug-ins, and extensions. Programs share languages, toolkits, utilities, and libraries. Code is ported from platform to platform, system to system. It was this environment which allowed Stallman’s GPL to flourish, as developers built and borrowed GNU applications, they brought the licensing with them.
One of the milestones of the GPL growth was its adoption by Linus Torvalds for the Linux kernel from version 0.12 onwards.ii The move was a practical one, as Linux had expanded into a fully equipped operating system kernel, the project had gradually started to fuse with the ecosystem of GNU applications, so much so that Stallman argued it should have been renamed to “GNU/Linux.”iii Stallman and Torvalds, the ideologue and the pragmatist, represented two very different strands of the free software movement. That their software licensing merged so early on is testament to the viral nature of the GPL, and the affordances of software which allowed such viral licensing to flourish.
The viral manner in which Linux and the GPL spread caused alarm in commercial software circles, especially Microsoft. CEO Steve Ballmer remarked that “Linux is a cancer that attaches itself in an intellectual property sense to everything it touches.”iv Craig Mundie, a senior executive at the company, warned that the “viral aspect of the GPL poses a threat to the intellectual property of any organization making use of it.”v
In a sense the greatest reason the GPL is a hack is that it treats the legal system like a computer system. In her study of the Debian community, Coleman draws parallels between programming and law-hacking, and while she regularly saw cynicism aimed at the law itself, she never saw cynicism at the task of learning the law. Instead she found that “geeks are in fact nimble legal thinkers” (Coleman, 2013: 163).
Code Is Speech
In examining the law, it is useful to draw on the Hoebel’s which stated that “a social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the socially recognized privilege of so acting” (Hoebel, 1954: 28). In repurposing copyright law, the GPL codifies a new set of “social norms,” and allocates the “socially recognized privilege” of enforcement to a new set of actors. Both are profoundly political acts.
That said, developers tended to join the F/OSS community in search of cheap, robust software, not politics, and some were turned off by any reference to an explicit political mission. This is borne out at the ground level in Coleman’s ethnographic research, and is also visible in the top-level events like the 1998 Freeware Summit, to which Stallman was conspicuously not invited, and “free software” was largely renamed as “open source software” to make it more palatable to commercial interests (Moody, 2001). However, despite the ever-present rift between idealists and pragmatists, and despite the ostensible claim to political agnosticism, the F/OSS community remains defined by a core principle: that developers should be allowed to see, change, and share the source code of software. In the community’s own terms, software should be “free as in speech”, as distinct from (or in addition to) being “free as in beer.”
That the community’s defining epithet is an oblique reference to “free speech” is an indication of a wider set of liberalist sensibilities, seen by developers as a set of rights that are so practical and reasonable as to be non-political. This was demonstrated in the “encryption wars” of the mid 1990s over the right to publish cryptographic software, especially the Bernstein case.vi
The F/OSS collection of norms and practices formed a legal and cultural counterpower to “the second enclosure movement” described by James Boyle (2003), rejecting commercial encroachment, and imbuing technological objects with liberal meaning. When rights holders tried to eradicate DeCSS, which circumvented access controls on DVDs, the software was translated into other languages and formats, including poetry, music, and film, while unrelated software called DeCSS was released online to confound law enforcement. With every transformation, assumptions about knowledge, ownership, and control were challenged.
Open Source Everything
As F/OSS projects became household names, the movement became a catalyst for broader transformation. Its power was not in its language or political vision, but in its existence as a living counterexample. The ideals of the Free Software Foundation spread virally, just like its GPL licenses, and were enshrined in the Debian project, the largest F/OSS community. Using Latour’s words, F/OSS production served as a “theater of proof” that economic incentives were not necessary to secure creative output (Coleman, 2013: 185). The success of F/OSS was so pronounced that it begged an immediate question, could these same ideals spark a transformation in journalism, art, education, government, and wider economic production?
When Lawrence Lessig founded Creative Commons in 2001 he was effectively “porting” free software ideals to the cultural domain. He acknowledged that heritage in the preface to his 2004 book Free Culture, an expanded manifesto for Creative Commons. Lessig wrote, “the inspiration for the title and for much of the argument of this book comes from the work of Richard Stallman and the Free Software Foundation. Indeed, as I reread Stallman’s own work, especially the essays in Free Software, Free Society, I realize that all of the theoretical insights I develop here are insights Stallman described decades ago” (Lessig, 2004: 8).
Creative Commons offered a transformational set of licenses, and the largest digital space to make use of those licenses was the network of websites and content repositories run by the Wikimedia Foundation. Founded in 2003 by Jimmy Wales, we might say the Wikimedia Foundation has the ideals of the free software movement written into its source code, with a mission statement “to empower and engage people around the world to collect and develop educational content under a free license or in the public domain, and to disseminate it effectively and globally.”vii The foundation runs a repository of 16 million media files, a multilingual dictionary, repositories for books, quotes, and source texts, a fledgling news service, and smaller projects in education, travel, and data services. However, the flagship project and household name remains Wikipedia, a staggeringly successful collaborative encyclopedia. With 26 million articles in 286 languages,viii it is the sixth most visited website worldwide.ix
Wikipedia is a cultural reiteration of the three free software ideals outlined above, shared authorship, the reimagination of law, and the circulation of code (or more broadly, knowledge) as a political right.
Firstly, shared authorship: Dubbed “Everybody’s Encyclopedia” by press,x Wikipedia community privileges authorship over ownership, and celebrates the collective authorship of its content. The foundation refutes any sense of corporate ownership, stating clearly: “The Wikimedia Foundation does not own copyright on Wikipedia article texts and illustrations.” The exact number of authors is impossible to tell, but the site currently has 18.9 million registered users and allows anonymous authoring. Every edit is recorded and openly viewable with the time and author clearly marked, and the work of each author is archived and searchable on its own page.
Secondly, hacking the law: The parallels between the licensing of GNU/Linux and Wikipedia are stark. Most of Wikipedia’s collectively authored text and many of its images are co-licensed under the Creative Commons Attribution-Sharealike 3.0 Unported License (CC-BY-SA) and the GNU Free Documentation License (GFDL).xi Just like free software, Wikipedia is built in layers of blurred and overlapping authorship. And just like the GPL, the CC-BY-SA license is viral, the “share-alike” clause states,”If you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one.”xii
Thirdly, code as speech: Just as free software advocates argued that code should be “free as in speech,” Wikipedians see the free circulation of knowledge as a political mission. Jimmy Wales has consistently stressed the importance of universal access to Wikipedia. In 2004 he stated “Imagine a world in which every single person on the planet is given free access to the sum of all human knowledge. That’s what we’re doing.”xiii Dedicated contributors share that sense of mission. Lee Daniel Crocker, a volunteer who helped write Wikipedia’s source code and has contributed to over 2,000 articles,xiv told a reporter that he “embraced Wikipedia because he believes information should be free.”xv That is the word that captures the political mission of the Wikipedia project, “free,” a word emblazoned on every Wikipedia page in the slogan “The Free Encyclopedia.” The slogan is included in every language, Wikipedia is libera, libre, freie, svobodnaya, wolna, but never gratis. In other words, Wikipedia is “free as in speech.”
I have examined three core ideals of the F/OSS movement: the privileging of authorship over ownership, the reimagination of law into something that can be hacked and repurposed, and political elevation of code into something that should be allowed to circulate freely. These ideals involve a profound reconfiguration of our understanding of intellectual property rights, and their embedding within the free software communities allowed them to ultimately be exported into the wider cultural domain, touching the lives of billions via successful, like-minded projects like Creative Commons and Wikipedia.
Boyle, James (2008), ‘The Public Domain: Enclosing the Commons of the Mind,’ Yale University Press
Coleman, E Gabriella (2013) ‘Coding Freedom:The Ethics and Aesthetics of Hacking,’ Princeton University Press
Hoebel, Adamson E. (1954) ‘The Law of Primitive Man,’ Harvard, MA: Atheneum (via Wikipedia)
Kelty, Christopher M (2008) ‘Two Bits: The Cultural Significance of Free Software,’ Duke University Press
Lessig, Lawrence (2004) ‘Free Culture,’ New York: Penguin Press http://www.free-culture.cc/freeculture.pdf
Moody, Glyn (2001) ‘Rebel Code: Linux and the Open Source Revolution,’ Penguin
ii Kernel release notes, 13 Jan 1992 https://www.kernel.org/pub/linux/kernel/Historic/old-versions/RELNOTES-0.12
vi Bernstein v. US Department of Justice case summary https://www.eff.org/cases/bernstein-v-us-dept-justice