[Solar-general] El lado oscuro de Ubuntu

[Marcos Guglielmetti]

El Miércoles, 12 de Noviembre de 2008 10:03, Rev3lde escribió:
 | > el software libre de desarrollo comunitario es en los hechos
 | > revolución social, código corriendo en computadoras, no una
 | > utopía, es el anarquismo triunfante
 |
 | ¿Software Libre = Anarquismo triunfante? 

http://firstmonday.org/issues/issue4_8/moglen/index.html#m3



    Anarchism Triumphant: Free Software and the Death of Copyright

    The spread of the Linux operating system kernel has directed 
attention at the free software movement. This paper shows why free 
software, far from being a marginal participant in the commercial 
software market, is the vital first step in the withering away of the 
intellectual property system.

    Contents

    I. Software as Property: The Theoretical Paradox
    II. Software as Property: The Practical Problem
    III. Anarchism as a Mode of Production
    IV. Their Lordships Die in the Dark?
    Conclusion

    I. Software as Property: The Theoretical Paradox

    SOFTWARE: no other word so thoroughly connotes the practical and 
social effects of the digital revolution. Originally, the term was 
purely technical, and denoted the parts of a computer system that, 
unlike "hardware," which was unchangeably manufactured in system 
electronics, could be altered freely. The first software amounted to 
the plug configuration of cables or switches on the outside panels of 
an electronic device, but as soon as linguistic means of altering 
computer behavior had been developed, "software" mostly denoted the 
expressions in more or less human-readable language that both 
described and controlled machine behavior [1].

    That was then and this is now. Technology based on the 
manipulation of digitally-encoded information is now socially 
dominant in most aspects of human culture in the "developed" 
societies [2]. The movement from analog to digital representation - 
in video, music, printing, telecommunications, and even choreography, 
religious worship, and sexual gratification - potentially turns all 
forms of human symbolic activity into software, that is, modifiable 
instructions for describing and controlling the behavior of machines. 
By a conceptual back-formation characteristic of Western scientistic 
thinking, the division between hardware and software is now being 
observed in the natural or social world, and has become a new way to 
express the conflict between ideas of determinism and free will, 
nature and nurture, or genes and culture. Our "hardware," genetically 
wired, is our nature, and determines us. Our nurture is "software," 
establishes our cultural programming, which is our comparative 
freedom. And so on, for those reckless of blather [3]. 
Thus "software" becomes a viable metaphor for all symbolic activity, 
apparently divorced from the technical context of the word's origin, 
despite the unease raised in the technically competent when the term 
is thus bandied about, eliding the conceptual significance of its 
derivation [4].

    But the widespread adoption of digital technology for use by those 
who do not understand the principles of its operation, while it 
apparently licenses the broad metaphoric employment of "software," 
does not in fact permit us to ignore the computers that are now 
everywhere underneath our social skin. The movement from analog to 
digital is more important for the structure of social and legal 
relations than the more famous if less certain movement from status 
to contract [5]. This is bad news for those legal thinkers who do not 
understand it, which is why so much pretending to understand now goes 
so floridly on. Potentially, however, our great transition is very 
good news for those who can turn this new-found land into property 
for themselves. Which is why the current "owners" of software so 
strongly support and encourage the ignorance of everyone else. 
Unfortunately for them - for reasons familiar to legal theorists who 
haven't yet understood how to apply their traditional logic in this 
area - the trick won't work. This paper explains why [6].

    We need to begin by considering the technical essence of the 
familiar devices that surround us in the era of "cultural software." 
A CD player is a good example. Its primary input is a bitstream read 
from an optical storage disk. The bitstream describes music in terms 
of measurements, taken 44,000 times per second, of frequency and 
amplitude in each of two audio channels. The player's primary output 
is analog audio signals [7]. Like everything else in the digital 
world, music as seen by a CD player is mere numeric information; a 
particular recording of Beethoven's Ninth Symphony recorded by Arturo 
Toscanini and the NBC Symphony Orchestra and Chorale is (to drop a 
few insignificant digits) 1276749873424, while Glenn Gould's 
peculiarly perverse last recording of the Goldberg Variations is 
(similarly rather truncated) 767459083268.

    Oddly enough, these two numbers are "copyrighted." This means, 
supposedly, that you can't possess another copy of these numbers, 
once fixed in any physical form, unless you have licensed them. And 
you can't turn 767459083268 into 2347895697 for your friends (thus 
correcting Gould's ridiculous judgment about tempi) without making 
a "derivative work," for which a license is necessary.

    At the same time, a similar optical storage disk contains another 
number, let us call it 7537489532. This one is an algorithm for 
linear programming of large systems with multiple constraints, useful 
for example if you want to make optimal use of your rolling stock in 
running a freight railroad. This number (in the U.S.) is "patented," 
which means you cannot derive 7537489532 for yourself, or 
otherwise "practice the art" of the patent with respect to solving 
linear programming problems no matter how you came by the idea, 
including finding it out for yourself, unless you have a license from 
the number's owner.

    Then there's 9892454959483. This one is the source code for 
Microsoft Word. In addition to being "copyrighted," this one is a 
trade secret. That means if you take this number from Microsoft and 
give it to anyone else you can be punished.

    Lastly, there's 588832161316. It doesn't do anything, it's just 
the square of 767354. As far as I know, it isn't owned by anybody 
under any of these rubrics. Yet.

    At this point we must deal with our first objection from the 
learned. It comes from a creature known as the IPdroid. The droid has 
a sophisticated mind and a cultured life. It appreciates very much 
the elegant dinners at academic and ministerial conferences about the 
TRIPs, not to mention the privilege of frequent appearances on MSNBC. 
It wants you to know that I'm committing the mistake of confusing the 
embodiment with the intellectual property itself. It's not the number 
that's patented, stupid, just the Kammerkar algorithm. The number can 
be copyrighted, because copyright covers the expressive qualities of 
a particular tangible embodiment of an idea (in which some functional 
properties may be mysteriously merged, provided that they're not too 
merged), but not the algorithm. Whereas the number isn't patentable, 
just the "teaching" of the number with respect to making railroads 
run on time. And the number representing the source code of Microsoft 
Word can be a trade secret, but if you find it out for yourself (by 
performing arithmetic manipulation of other numbers issued by 
Microsoft, for example, which is known as "reverse engineering"), 
you're not going to be punished, at least if you live in some parts 
of the United States.

    This droid, like other droids, is often right. The condition of 
being a droid is to know everything about something and nothing about 
anything else. By its timely and urgent intervention the droid has 
established that the current intellectual property system contains 
many intricate and ingenious features. The complexities combine to 
allow professors to be erudite, Congressmen to get campaign 
contributions, lawyers to wear nice suits and tassel loafers, and 
Murdoch to be rich. The complexities mostly evolved in an age of 
industrial information distribution, when information was inscribed 
in analog forms on physical objects that cost something significant 
to make, move, and sell. When applied to digital information that 
moves frictionlessly through the network and has zero marginal cost 
per copy, everything still works, mostly, as long as you don't stop 
squinting.

    But that wasn't what I was arguing about. I wanted to point out 
something else: that our world consists increasingly of nothing but 
large numbers (also known as bitstreams), and that - for reasons 
having nothing to do with emergent properties of the numbers 
themselves - the legal system is presently committed to treating 
similar numbers radically differently. No one can tell, simply by 
looking at a number that is 100 million digits long, whether that 
number is subject to patent, copyright, or trade secret protection, 
or indeed whether it is "owned" by anyone at all. So the legal system 
we have - blessed as we are by its consequences if we are copyright 
teachers, Congressmen, Gucci-gulchers or Big Rupert himself - is 
compelled to treat indistinguishable things in unlike ways.

    Now, in my role as a legal historian concerned with the secular 
(that is, very long term) development of legal thought, I claim that 
legal regimes based on sharp but unpredictable distinctions among 
similar objects are radically unstable. They fall apart over time 
because every instance of the rules' application is an invitation to 
at least one side to claim that instead of fitting in ideal category 
A the particular object in dispute should be deemed to fit instead in 
category B, where the rules will be more favorable to the party 
making the claim. This game - about whether a typewriter should be 
deemed a musical instrument for purposes of railway rate regulation, 
or whether a steam shovel is a motor vehicle - is the frequent stuff 
of legal ingenuity. But when the conventionally-approved legal 
categories require judges to distinguish among the identical, the 
game is infinitely lengthy, infinitely costly, and almost infinitely 
offensive to the unbiased bystander [8].

    Thus parties can spend all the money they want on all the 
legislators and judges they can afford - which for the new "owners" 
of the digital world is quite a few - but the rules they buy aren't 
going to work in the end. Sooner or later, the paradigms are going to 
collapse. Of course, if later means two generations from now, the 
distribution of wealth and power sanctified in the meantime may not 
be reversible by any course less drastic than a bellum servile of 
couch potatoes against media magnates. So knowing that history isn't 
on Bill Gates' side isn't enough. We are predicting the future in a 
very limited sense: we know that the existing rules, which have yet 
the fervor of conventional belief solidly enlisted behind them, are 
no longer meaningful. Parties will use and abuse them freely until 
the mainstream of "respectable" conservative opinion acknowledges 
their death, with uncertain results. But realistic scholarship should 
already be turning its attention to the clear need for new 
thoughtways.

    When we reach this point in the argument, we find ourselves 
contending with the other primary protagonist of educated idiocy: the 
econodwarf. Like the IPdroid, the econodwarf is a species of 
hedgehog,[9] but where the droid is committed to logic over 
experience, the econodwarf specializes in an energetic and 
well-focused but entirely erroneous view of human nature. According 
to the econodwarf's vision, each human being is an individual 
possessing "incentives," which can be retrospectively unearthed by 
imagining the state of the bank account at various times. So in this 
instance the econodwarf feels compelled to object that without the 
rules I am lampooning, there would be no incentive to create the 
things the rules treat as property: without the ability to exclude 
others from music there would be no music, because no one could be 
sure of getting paid for creating it.

    Music is not really our subject; the software I am considering at 
the moment is the old kind: computer programs. But as he is 
determined to deal at least cursorily with the subject, and because, 
as we have seen, it is no longer really possible to distinguish 
computer programs from music performances, a word or two should be 
said. At least we can have the satisfaction of indulging in an 
argument ad pygmeam. When the econodwarf grows rich, in my 
experience, he attends the opera. But no matter how often he hears 
Don Giovanni it never occurs to him that Mozart's fate should, on his 
logic, have entirely discouraged Beethoven, or that we have The Magic 
Flute even though Mozart knew very well he wouldn't be paid. In fact, 
The Magic Flute, St. Matthew's Passion, and the motets of the 
wife-murderer Carlo Gesualdo are all part of the centuries-long 
tradition of free software, in the more general sense, which the 
econodwarf never quite acknowledges.

    The dwarf's basic problem is that "incentives" is merely a 
metaphor, and as a metaphor to describe human creative activity it's 
pretty crummy. I have said this before,[10] but the better metaphor 
arose on the day Michael Faraday first noticed what happened when he 
wrapped a coil of wire around a magnet and spun the magnet. Current 
flows in such a wire, but we don't ask what the incentive is for the 
electrons to leave home. We say that the current results from an 
emergent property of the system, which we call induction. The 
question we ask is "what's the resistance of the wire?" So Moglen's 
Metaphorical Corollary to Faraday's Law says that if you wrap the 
Internet around every person on the planet and spin the planet, 
software flows in the network. It's an emergent property of connected 
human minds that they create things for one another's pleasure and to 
conquer their uneasy sense of being too alone. The only question to 
ask is, what's the resistance of the network? Moglen's Metaphorical 
Corollary to Ohm's Law states that the resistance of the network is 
directly proportional to the field strength of the "intellectual 
property" system. So the right answer to the econodwarf is, resist 
the resistance.

    Of course, this is all very well in theory. "Resist the 
resistance" sounds good, but we'd have a serious problem, theory 
notwithstanding, if the dwarf were right and we found ourselves 
under-producing good software because we didn't let people own it. 
But dwarves and droids are formalists of different kinds, and the 
advantage of realism is that if you start from the facts the facts 
are always on your side. It turns out that treating software as 
property makes bad software.

    II. Software as Property: The Practical Problem

    In order to understand why turning software into property produces 
bad software, we need an introduction to the history of the art. In 
fact, we'd better start with the word "art" itself. The programming 
of computers combines determinate reasoning with literary invention.

    At first glance, to be sure, source code appears to be a 
non-literary form of composition [11]. The primary desideratum in a 
computer program is that it works, that is to say, performs according 
to specifications formally describing its outputs in terms of its 
inputs. At this level of generality, the functional content of 
programs is all that can be seen.

    But working computer programs exist as parts of computer systems, 
which are interacting collections of hardware, software, and human 
beings. The human components of a computer system include not only 
the users, but also the (potentially different) persons who maintain 
and improve the system. Source code not only communicates with the 
computer that executes the program, through the intermediary of the 
compiler that produces machine-language object code, but also with 
other programmers.

    The function of source code in relation to other human beings is 
not widely grasped by non-programmers, who tend to think of computer 
programs as incomprehensible. They would be surprised to learn that 
the bulk of information contained in most programs is, from the point 
of view of the compiler or other language processor, "comment," that 
is, non-functional material. The comments, of course, are addressed 
to others who may need to fix a problem or to alter or enhance the 
program's operation. In most programming languages, far more space is 
spent in telling people what the program does than in telling the 
computer how to do it.

    The design of programming languages has always proceeded under the 
dual requirements of complete specification for machine execution and 
informative description for human readers. One might identify three 
basic strategies in language design for approaching this dual 
purpose. The first, pursued initially with respect to the design of 
languages specific to particular hardware products and collectively 
known as "assemblers," essentially separated the human- and 
machine-communication portions of the program. Assembler instructions 
are very close relatives of machine-language instructions: in 
general, one line of an assembler program corresponds to one 
instruction in the native language of the machine. The programmer 
controls machine operation at the most specific possible level, and 
(if well-disciplined) engages in running commentary alongside the 
machine instructions, pausing every few hundred instructions to 
create "block comments," which provide a summary of the strategy of 
the program, or document the major data structures the program 
manipulates.

    A second approach, characteristically depicted by the language 
COBOL (which stood for "Common Business-Oriented Language"), was to 
make the program itself look like a set of natural language 
directions, written in a crabbed but theoretically human-readable 
style. A line of COBOL code might say, for example "MULTIPLY PRICE 
TIMES QUANTITY GIVING EXPANSION." At first, when the Pentagon and 
industry experts began the joint design of COBOL in the early 1960's, 
this seemed a promising approach. COBOL programs appeared largely 
self-documenting, allowing both the development of work teams able to 
collaborate on the creation of large programs, and the training of 
programmers who, while specialized workers, would not need to 
understand the machine as intimately as assembler programs had to. 
But the level of generality at which such programs documented 
themselves was wrongly selected. A more formulaic and compressed 
expression of operational detail "expansion = price x quantity," for 
example, was better suited even to business and financial 
applications where the readers and writers of programs were 
accustomed to mathematical expression, while the processes of 
describing both data structures and the larger operational context of 
the program were not rendered unnecessary by the wordiness of the 
language in which the details of execution were specified.

    Accordingly, language designers by the late 1960s began 
experimenting with forms of expression in which the blending of 
operational details and non-functional information necessary for 
modification or repair was more subtle. Some designers chose the path 
of highly symbolic and compressed languages, in which the programmer 
manipulated data abstractly, so that "A x B" might mean the 
multiplication of two integers, two complex numbers, two vast arrays, 
or any other data type capable of some process 
called "multiplication," to be undertaken by the computer on the 
basis of the context for the variables "A" and "B" at the moment of 
execution [12]. Because this approach resulted in extremely concise 
programs, it was thought, the problem of making code comprehensible 
to those who would later seek to modify or repair it was simplified. 
By hiding the technical detail of computer operation and emphasizing 
the algorithm, languages could be devised that were better than 
English or other natural languages for the expression of stepwise 
processes. Commentary would be not only unnecessary but distracting, 
just as the metaphors used to convey mathematical concepts in English 
do more to confuse than to enlighten.

    How We Created the Microbrain Mess

    Thus the history of programming languages directly reflected the 
need to find forms of human-machine communication that were also 
effective in conveying complex ideas to human readers. "Expressivity" 
became a property of programming languages, not because it 
facilitated computation, but because it facilitated the collaborative 
creation and maintenance of increasingly complex software systems.

    At first impression, this seems to justify the application of 
traditional copyright thinking to the resulting works. Though 
substantially involving "functional" elements, computer programs 
contained "expressive" features of paramount importance. Copyright 
doctrine recognized the merger of function and expression as 
characteristic of many kinds of copyrighted works. "Source code," 
containing both the machine instructions necessary for functional 
operation and the expressive "commentary" intended for human readers, 
was an appropriate candidate for copyright treatment.

    True, so long as it is understood that the expressive component of 
software was present solely in order to facilitate the making 
of "derivative works." Were it not for the intention to facilitate 
alteration, the expressive elements of programs would be entirely 
supererogatory, and source code would be no more copyrightable than 
object code, the output of the language processor, purged of all but 
the program's functional characteristics.

    The state of the computer industry throughout the 1960's and 
1970's, when the grundnorms of sophisticated computer programming 
were established, concealed the tension implicit in this situation. 
In that period, hardware was expensive. Computers were increasingly 
large and complex collections of machines, and the business of 
designing and building such an array of machines for general use was 
dominated, not to say monopolized, by one firm. IBM gave away its 
software. To be sure, it owned the programs its employees wrote, and 
it copyrighted the source code. But it also distributed the 
programs - including the source code - to its customers at no 
additional charge, and encouraged them to make and share improvements 
or adaptations of the programs thus distributed. For a dominant 
hardware manufacturer, this strategy made sense: better programs sold 
more computers, which is where the profitability of the business 
rested.

    Computers, in this period, tended to aggregate within particular 
organizations, but not to communicate broadly with one another. The 
software needed to operate was distributed not through a network, but 
on spools of magnetic tape. This distribution system tended to 
centralize software development, so that while IBM customers were 
free to make modifications and improvements to programs, those 
modifications were shared in the first instance with IBM, which then 
considered whether and in what way to incorporate those changes in 
the centrally-developed and distributed version of the software. Thus 
in two important senses the best computer software in the world was 
free: it cost nothing to acquire, and the terms on which it was 
furnished both allowed and encouraged experimentation, change, and 
improvement [13]. That the software in question was IBM's property 
under prevailing copyright law certainly established some theoretical 
limits on users' ability to distribute their improvements or 
adaptations to others, but in practice mainframe software was 
cooperatively developed by the dominant hardware manufacturer and its 
technically-sophisticated users, employing the manufacturer's 
distribution resources to propagate the resulting improvements 
through the user community. The right to exclude others, one of the 
most important "sticks in the bundle" of property rights (in an image 
beloved of the United States Supreme Court), was practically 
unimportant, or even undesirable, at the heart of the software 
business [14].

    After 1980, everything was different. The world of mainframe 
hardware gave way within ten years to the world of the commodity PC. 
And, as a contingency of the industry's development, the single most 
important element of the software running on that commodity PC, the 
operating system, became the sole significant product of a company 
that made no hardware. High-quality basic software ceased to be part 
of the product-differentiation strategy of hardware manufacturers. 
Instead, a firm with an overwhelming share of the market, and with 
the near-monopolist's ordinary absence of interest in fostering 
diversity, set the practices of the software industry. In such a 
context, the right to exclude others from participation in the 
product's formation became profoundly important. Microsoft's power in 
the market rested entirely on its ownership of the Windows source 
code.

    To Microsoft, others' making of "derivative works," otherwise 
known as repairs and improvements, threatened the central asset of 
the business. Indeed, as subsequent judicial proceedings have tended 
to establish, Microsoft's strategy as a business was to find 
innovative ideas elsewhere in the software marketplace, buy them up 
and either suppress them or incorporate them in its proprietary 
product. The maintenance of control over the basic operation of 
computers manufactured, sold, possessed, and used by others 
represented profound and profitable leverage over the development of 
the culture [15]; the right to exclude returned to center stage in 
the concept of software as property.

    The result, so far as the quality of software was concerned, was 
disastrous. The monopoly was a wealthy and powerful corporation that 
employed a large number of programmers, but it could not possibly 
afford the number of testers, designers, and developers required to 
produce flexible, robust and technically-innovative software 
appropriate to the vast array of conditions under which increasingly 
ubiquitous personal computers operated. Its fundamental marketing 
strategy involved designing its product for the least 
technically-sophisticated users, and using "fear, uncertainty, and 
doubt" (known within Microsoft as "FUD") to drive sophisticated users 
away from potential competitors, whose long-term survivability in the 
face of Microsoft's market power was always in question.

    Without the constant interaction between users able to repair and 
improve and the operating system's manufacturer, the inevitable 
deterioration of quality could not be arrested. But because the 
personal computer revolution expanded the number of users 
exponentially, almost everyone who came in contact with the resulting 
systems had nothing against which to compare them. Unaware of the 
standards of stability, reliability, maintainability and 
effectiveness that had previously been established in the mainframe 
world, users of personal computers could hardly be expected to 
understand how badly, in relative terms, the monopoly's software 
functioned. As the power and capacity of personal computers expanded 
rapidly, the defects of the software were rendered less obvious 
amidst the general increase of productivity. Ordinary users, more 
than half afraid of the technology they almost completely did not 
understand, actually welcomed the defectiveness of the software. In 
an economy undergoing mysterious transformations, with the 
concomitant destabilization of millions of careers, it was 
tranquilizing, in a perverse way, that no personal computer seemed to 
be able to run for more than a few consecutive hours without 
crashing. Although it was frustrating to lose work in progress each 
time an unnecessary failure occurred, the evident fallibility of 
computers was intrinsically reassuring [16].

    None of this was necessary. The low quality of personal computer 
software could have been reversed by including users directly in the 
inherently evolutionary process of software design and 
implementation. A Lamarckian mode, in which improvements could be 
made anywhere, by anyone, and inherited by everyone else, would have 
wiped out the deficit, restoring to the world of the PC the stability 
and reliability of the software made in the quasi-propertarian 
environment of the mainframe era. But the Microsoft business model 
precluded Lamarckian inheritance of software improvements. Copyright 
doctrine, in general and as it applies to software in particular, 
biases the world towards creationism; in this instance, the problem 
is that BillG the Creator was far from infallible, and in fact he 
wasn't even trying.

    To make the irony more severe, the growth of the network rendered 
the non-propertarian alternative even more practical. What scholarly 
and popular writing alike denominate as a thing ("the Internet") is 
actually the name of a social condition: the fact that everyone in 
the network society is connected directly, without intermediation, to 
everyone else [17]. The global interconnection of networks eliminated 
the bottleneck that had required a centralized software manufacturer 
to rationalize and distribute the outcome of individual innovation in 
the era of the mainframe.

    And so, in one of history's little ironies, the global triumph of 
bad software in the age of the PC was reversed by a surprising 
combination of forces: the social transformation initiated by the 
network, a long-discarded European theory of political economy, and a 
small band of programmers throughout the world mobilized by a single 
simple idea.

    Software Wants to Be Free; or, How We Stopped Worrying and Learned 
to Love the Bomb

    Long before the network of networks was a practical reality, even 
before it was an aspiration, there was a desire for computers to 
operate on the basis of software freely available to everyone. This 
began as a reaction against propertarian software in the mainframe 
era, and requires another brief historical digression.

    Even though IBM was the largest seller of general purpose 
computers in the mainframe era, it was not the largest designer and 
builder of such hardware. The telephone monopoly, American Telephone 
& Telegraph, was in fact larger than IBM, but it consumed its 
products internally. And at the famous Bell Labs research arm of the 
telephone monopoly, in the late 1960's, the developments in computer 
languages previously described gave birth to an operating system 
called Unix.

    The idea of Unix was to create a single, scalable operating system 
to exist on all the computers, from small to large, that the 
telephone monopoly made for itself. To achieve this goal meant 
writing an operating system not in machine language, nor in an 
assembler whose linguistic form was integral to a particular hardware 
design, but in a more expressive and generalized language. The one 
chosen was also a Bell Labs invention, called "C" [18]. The C 
language became common, even dominant, for many kinds of programming 
tasks, and by the late 1970's the Unix operating system written in 
that language had been transferred (or "ported," in professional 
jargon) to computers made by many manufacturers and of many designs.

    AT&T distributed Unix widely, and because of the very design of 
the operating system, it had to make that distribution in C source 
code. But AT&T retained ownership of the source code and compelled 
users to purchase licenses that prohibited redistribution and the 
making of derivative works. Large computing centers, whether 
industrial or academic, could afford to purchase such licenses, but 
individuals could not, while the license restrictions prevented the 
community of programmers who used Unix from improving it in an 
evolutionary rather than episodic fashion. And as programmers 
throughout the world began to aspire to and even expect a personal 
computer revolution, the "unfree" status of Unix became a source of 
concern.

    Between 1981 and 1984, one man envisioned a crusade to change the 
situation. Richard M. Stallman, then an employee of MIT's Artificial 
Intelligence Laboratory, conceived the project of independent, 
collaborative redesign and implementation of an operating system that 
would be true free software. In Stallman's phrase, free software 
would be a matter of freedom, not of price. Anyone could freely 
modify and redistribute such software, or sell it, subject only to 
the restriction that he not try to reduce the rights of others to 
whom he passed it along. In this way free software could become a 
self-organizing project, in which no innovation would be lost through 
proprietary exercises of rights. The system, Stallman decided, would 
be called GNU, which stood (in an initial example of a taste for 
recursive acronyms that has characterized free software ever since), 
for "GNU's Not Unix." Despite misgivings about the fundamental design 
of Unix, as well as its terms of distribution, GNU was intended to 
benefit from the wide if unfree source distribution of Unix. Stallman 
began Project GNU by writing components of the eventual system that 
were also designed to work without modification on existing Unix 
systems. Development of the GNU tools could thus proceed directly in 
the environment of university and other advanced computing centers 
around the world.

    The scale of such a project was immense. Somehow, volunteer 
programmers had to be found, organized, and set to work building all 
the tools that would be necessary for the ultimate construction. 
Stallman himself was the primary author of several fundamental tools. 
Others were contributed by small or large teams of programmers 
elsewhere, and assigned to Stallman's project or distributed 
directly. A few locations around the developing network became 
archives for the source code of these GNU components, and throughout 
the 1980's the GNU tools gained recognition and acceptance by Unix 
users throughout the world. The stability, reliability, and 
maintainability of the GNU tools became a by-word, while Stallman's 
profound abilities as a designer continued to outpace, and provide 
goals for, the evolving process. The award to Stallman of a MacArthur 
Fellowship in 1990 was an appropriate recognition of his conceptual 
and technical innovations and their social consequences.

    Project GNU, and the Free Software Foundation to which it gave 
birth in 1985, were not the only source of free software ideas. 
Several forms of copyright license designed to foster free or 
partially free software began to develop in the academic community, 
mostly around the Unix environment. The University of California at 
Berkeley began the design and implementation of another version of 
Unix for free distribution in the academic community. BSD Unix, as it 
came to be known, also treated AT&T's Unix as a design standard. The 
code was broadly released and constituted a reservoir of tools and 
techniques, but its license terms limited the range of its 
application, while the elimination of hardware-specific proprietary 
code from the distribution meant that no one could actually build a 
working operating system for any particular computer from BSD. Other 
university-based work also eventuated in quasi-free software; the 
graphical user interface (or GUI) for Unix systems called X Windows, 
for example, was created at MIT and distributed with source code on 
terms permitting free modification. And in 1989-1990, an 
undergraduate computer science student at the University of Helsinki, 
Linus Torvalds, began the project that completed the circuit and 
fully energized the free software vision.

    What Torvalds did was to begin adapting a computer science 
teaching tool for real life use. Andrew Tannenbaum's MINIX kernel 
[19], was a staple of Operating Systems courses, providing an example 
of basic solutions to basic problems. Slowly, and at first without 
recognizing the intention, Linus began turning the MINIX kernel into 
an actual kernel for Unix on the Intel x86 processors, the engines 
that run the world's commodity PCs. As Linus began developing this 
kernel, which he named Linux, he realized that the best way to make 
his project work would be to adjust his design decisions so that the 
existing GNU components would be compatible with his kernel.

    The result of Torvalds' work was the release on the net in 1991 of 
a sketchy working model of a free software kernel for a Unix-like 
operating system for PCs, fully compatible with and designed 
convergently with the large and high-quality suite of system 
components created by Stallman's Project GNU and distributed by the 
Free Software Foundation. Because Torvalds chose to release the Linux 
kernel under the Free Software Foundation's General Public License, 
of which more below, the hundreds and eventually thousands of 
programmers around the world who chose to contribute their effort 
towards the further development of the kernel could be sure that 
their efforts would result in permanently free software that no one 
could turn into a proprietary product. Everyone knew that everyone 
else would be able to test, improve, and redistribute their 
improvements. Torvalds accepted contributions freely, and with a 
genially effective style maintained overall direction without 
dampening enthusiasm. The development of the Linux kernel proved that 
the Internet made it possible to aggregate collections of programmers 
far larger than any commercial manufacturer could afford, joined 
almost non-hierarchically in a development project ultimately 
involving more than one million lines of computer code - a scale of 
collaboration among geographically dispersed unpaid volunteers 
previously unimaginable in human history [20].

    By 1994, Linux had reached version 1.0, representing a usable 
production kernel. Level 2.0 was reached in 1996, and by 1998, with 
the kernel at 2.2.0 and available not only for x86 machines but for a 
variety of other machine architectures, GNU/Linux - the combination 
of the Linux kernel and the much larger body of Project GNU 
components - and Windows NT were the only two operating systems in 
the world gaining market share. A Microsoft internal assessment of 
the situation leaked in October 1998 and subsequently acknowledged by 
the company as genuine concluded that "Linux represents a 
best-of-breed UNIX, that is trusted in mission critical applications, 
and - due to it's [sic] open source code - has a long term 
credibility which exceeds many other competitive OS's." [21] 
GNU/Linux systems are now used throughout the world, operating 
everything from Web servers at major electronic commerce sites 
to "ad-hoc supercomputer" clusters to the network infrastructure of 
money-center banks. GNU/Linux is found on the space shuttle, and 
running behind-the-scenes computers at (yes) Microsoft. Industry 
evaluations of the comparative reliability of Unix systems have 
repeatedly shown that Linux is far and away the most stable and 
reliable Unix kernel, with a reliability exceeded only by the GNU 
tools themselves. GNU/Linux not only out-performs commercial 
proprietary Unix versions for PCs in benchmarks, but is renowned for 
its ability to run, undisturbed and uncomplaining, for months on end 
in high-volume high-stress environments without crashing.

    Other components of the free software movement have been equally 
successful. Apache, far and away the world's leading Web server 
program, is free software, as is Perl, the programming language which 
is the lingua franca for the programmers who build sophisticated Web 
sites. Netscape Communications now distributes its Netscape 
Communicator 5.0 browser as free software, under a close variant of 
the Free Software Foundation's General Public License. Major PC 
manufacturers, including IBM, have announced plans or are already 
distributing GNU/Linux as a customer option on their top-of-the-line 
PCs intended for use as Web- and file servers. Samba, a program that 
allows GNU/Linux computers to act as Windows NT file servers, is used 
worldwide as an alternative to Windows NT Server, and provides 
effective low-end competition to Microsoft in its own home market. By 
the standards of software quality that have been recognized in the 
industry for decades - and whose continuing relevance will be clear 
to you the next time your Windows PC crashes - the news at century's 
end is unambiguous. The world's most profitable and powerful 
corporation comes in a distant second, having excluded all but the 
real victor from the race. Propertarianism joined to capitalist vigor 
destroyed meaningful commercial competition, but when it came to 
making good software, anarchism won.

    III. Anarchism as a Mode of Production

    It's a pretty story, and if only the IPdroid and the econodwarf 
hadn't been blinded by theory, they'd have seen it coming. But though 
some of us had been working for it and predicting it for years, the 
theoretical consequences are so subversive for the thoughtways that 
maintain our dwarves and droids in comfort that they can hardly be 
blamed for refusing to see. The facts proved that something was wrong 
with the "incentives" metaphor that underprops conventional 
intellectual property reasoning [22]. But they did more. They 
provided an initial glimpse into the future of human creativity in a 
world of global interconnection, and it's not a world made for 
dwarves and droids.

    My argument, before we paused for refreshment in the real world, 
can be summarized this way: Software - whether executable programs, 
music, visual art, liturgy, weaponry, or what have you - consists of 
bitstreams, which although essentially indistinguishable are treated 
by a confusing multiplicity of legal categories. This multiplicity is 
unstable in the long term for reasons integral to the legal process. 
The unstable diversity of rules is caused by the need to distinguish 
among kinds of property interests in bitstreams. This need is 
primarily felt by those who stand to profit from the socially 
acceptable forms of monopoly created by treating ideas as property. 
Those of us who are worried about the social inequity and cultural 
hegemony created by this intellectually unsatisfying and morally 
repugnant regime are shouted down. Those doing the shouting, the 
dwarves and the droids, believe that these property rules are 
necessary not from any overt yearning for life in Murdochworld - 
though a little luxurious co-optation is always welcome - but because 
the metaphor of incentives, which they take to be not just an image 
but an argument, proves that these rules - despite their lamentable 
consequences - are necessary if we are to make good software. The 
only way to continue to believe this is to ignore the facts. At the 
center of the digital revolution, with the executable bitstreams that 
make everything else possible, propertarian regimes not only do not 
make things better, they can make things radically worse. Property 
concepts, whatever else may be wrong with them, do not enable and 
have in fact retarded progress.

    But what is this mysterious alternative? Free software exists, but 
what are its mechanisms, and how does it generalize towards a 
non-propertarian theory of the digital society?

    The Legal Theory of Free Software

    There is a myth, like most myths partially founded on reality, 
that computer programmers are all libertarians. Right-wing ones are 
capitalists, cleave to their stock options, and disdain taxes, 
unions, and civil rights laws; left-wing ones hate the market and all 
government, believe in strong encryption no matter how much nuclear 
terrorism it may cause,[23] and dislike Bill Gates because he's rich. 
There is doubtless a foundation for this belief. But the most 
significant difference between political thought inside the digirati 
and outside it is that in the network society, anarchism (or more 
properly, anti-possessive individualism) is a viable political 
philosophy.

    The center of the free software movement's success, and the 
greatest achievement of Richard Stallman, is not a piece of computer 
code. The success of free software, including the overwhelming 
success of GNU/Linux, results from the ability to harness 
extraordinary quantities of high-quality effort for projects of 
immense size and profound complexity. And this ability in turn 
results from the legal context in which the labor is mobilized. As a 
visionary designer Richard Stallman created more than Emacs, GDB, or 
GNU. He created the General Public License.

    The GPL,[24] also known as the copyleft, uses copyright, to 
paraphrase Toby Milsom, to counterfeit the phenomena of anarchism. As 
the license preamble expresses it:

        When we speak of free software, we are referring to freedom, 
not price. Our General Public Licenses are designed to make sure that 
you have the freedom to distribute copies of free software (and 
charge for this service if you wish), that you receive source code or 
can get it if you want it, that you can change the software or use 
pieces of it in new free programs; and that you know you can do these 
things.

        To protect your rights, we need to make restrictions that 
forbid anyone to deny you these rights or to ask you to surrender the 
rights. These restrictions translate to certain responsibilities for 
you if you distribute copies of the software, or if you modify it.

        For example, if you distribute copies of such a program, 
whether gratis or for a fee, you must give the recipients all the 
rights that you have. You must make sure that they, too, receive or 
can get the source code. And you must show them these terms so they 
know their rights.

    Many variants of this basic free software idea have been expressed 
in licenses of various kinds, as I have already indicated. The GPL is 
different from the other ways of expressing these values in one 
crucial respect. Section 2 of the license provides in pertinent part:

        You may modify your copy or copies of the Program or any 
portion of it, thus forming a work based on the Program, and copy and 
distribute such modifications or work ..., provided that you also 
meet all of these conditions: 

        ...

        b) You must cause any work that you distribute or publish, 
that in whole or in part contains or is derived from the Program or 
any part thereof, to be licensed as a whole at no charge to all third 
parties under the terms of this License.

    Section 2(b) of the GPL is sometimes called "restrictive," but its 
intention is liberating. It creates a commons, to which anyone may 
add but from which no one may subtract. Because of §2(b), each 
contributor to a GPL'd project is assured that she, and all other 
users, will be able to run, modify and redistribute the program 
indefinitely, that source code will always be available, and that, 
unlike commercial software, its longevity cannot be limited by the 
contingencies of the marketplace or the decisions of future 
developers. This "inheritance" of the GPL has sometimes been 
criticized as an example of the free software movement's 
anti-commercial bias. Nothing could be further from the truth. The 
effect of §2(b) is to make commercial distributors of free software 
better competitors against proprietary software businesses. For 
confirmation of this point, one can do no better than to ask the 
proprietary competitors. As the author of the Microsoft "Halloween" 
memorandum, Vinod Vallopillil, put it:

        The GPL and its aversion to code forking reassures customers 
that they aren't riding an evolutionary `dead-end' by subscribing to 
a particular commercial version of Linux.

        The "evolutionary dead-end" is the core of the software FUD 
argument [25].

    Translated out of Microspeak, this means that the strategy by 
which the dominant proprietary manufacturer drives customers away 
from competitors - by sowing fear, uncertainty and doubt about other 
software's long-term viability - is ineffective with respect to GPL'd 
programs. Users of GPL'd code, including those who purchase software 
and systems from a commercial reseller, know that future improvements 
and repairs will be accessible from the commons, and need not fear 
either the disappearance of their supplier or that someone will use a 
particularly attractive improvement or a desperately necessary repair 
as leverage for "taking the program private."

    This use of intellectual property rules to create a commons in 
cyberspace is the central institutional structure enabling the 
anarchist triumph. Ensuring free access and enabling modification at 
each stage in the process means that the evolution of software occurs 
in the fast Lamarckian mode: each favorable acquired characteristic 
of others' work can be directly inherited. Hence the speed with which 
the Linux kernel, for example, outgrew all of its proprietary 
predecessors. Because defection is impossible, free riders are 
welcome, which resolves one of the central puzzles of collective 
action in a propertarian social system.

    Non-propertarian production is also directly responsible for the 
famous stability and reliability of free software, which arises from 
what Eric Raymond calls "Linus' law": With enough eyeballs, all bugs 
are shallow. In practical terms, access to source code means that if 
I have a problem I can fix it. Because I can fix it, I almost never 
have to, because someone else has almost always seen it and fixed it 
first.

    For the free software community, commitment to anarchist 
production may be a moral imperative; as Richard Stallman wrote, it's 
about freedom, not about price. Or it may be a matter of utility, 
seeking to produce better software than propertarian modes of work 
will allow. From the droid point of view, the copyleft represents the 
perversion of theory, but better than any other proposal over the 
past decades it resolves the problems of applying copyright to the 
inextricably merged functional and expressive features of computer 
programs. That it produces better software than the alternative does 
not imply that traditional copyright principles should now be 
prohibited to those who want to own and market inferior software 
products, or (more charitably) whose products are too narrow in 
appeal for communal production. But our story should serve as a 
warning to droids: The world of the future will bear little relation 
to the world of the past. The rules are now being bent in two 
directions. The corporate owners of "cultural icons" and other assets 
who seek ever-longer terms for corporate authors, converting 
the "limited Time" of Article I, §8 into a freehold have naturally 
been whistling music to the android ear [26]. After all, who bought 
the droids their concert tickets? But as the propertarian position 
seeks to embed itself ever more strongly, in a conception of 
copyright liberated from the minor annoyances of limited terms and 
fair use, at the very center of our "cultural software" system, the 
anarchist counter-strike has begun. Worse is yet to befall the 
droids, as we shall see. But first, we must pay our final devoirs to 
the dwarves.

    Because It's There: Faraday's Magnet and Human Creativity

    After all, they deserve an answer. Why do people make free 
software if they don't get to profit? Two answers have usually been 
given. One is half-right and the other is wrong, but both are 
insufficiently simple.

    The wrong answer is embedded in numerous references to "the hacker 
gift-exchange culture." This use of ethnographic jargon wandered into 
the field some years ago and became rapidly, if misleadingly, 
ubiquitous. It reminds us only that the economeretricians have so 
corrupted our thought processes that any form of non-market economic 
behavior seems equal to every other kind. But gift-exchange, like 
market barter, is a propertarian institution. Reciprocity is central 
to these symbolic enactments of mutual dependence, and if either the 
yams or the fish are short-weighted, trouble results. Free software, 
at the risk of repetition, is a commons: no reciprocity ritual is 
enacted there. A few people give away code that others sell, use, 
change, or borrow wholesale to lift out parts for something else. 
Notwithstanding the very large number of people (tens of thousands, 
at most) who have contributed to GNU/Linux, this is orders of 
magnitude less than the number of users who make no contribution 
whatever [27].

    A part of the right answer is suggested by the claim that free 
software is made by those who seek reputational compensation for 
their activity. Famous Linux hackers, the theory is, are known all 
over the planet as programming deities. From this they derive either 
enhanced self-esteem or indirect material advancement [28]. But the 
programming deities, much as they have contributed to free software, 
have not done the bulk of the work. Reputations, as Linus Torvalds 
himself has often pointed out, are made by willingly acknowledging 
that it was all done by someone else. And, as many observers have 
noted, the free software movement has also produced superlative 
documentation. Documentation-writing is not what hackers do to attain 
cool, and much of the documentation has been written by people who 
didn't write the code. Nor must we limit the indirect material 
advantages of authorship to increases in reputational capital. Most 
free software authors I know have day jobs in the technology 
industries, and the skills they hone in the more creative work they 
do outside the market no doubt sometimes measurably enhance their 
value within it. And as the free software products gained critical 
mass and became the basis of a whole new set of business models built 
around commercial distribution of that which people can also get for 
nothing, an increasing number of people are specifically employed to 
write free software. But in order to be employable in the field, they 
must already have established themselves there. Plainly, then, this 
motive is present, but it isn't the whole explanation.

    Indeed, the rest of the answer is just too simple to have received 
its due. The best way to understand is to follow the brief and 
otherwise unsung career of an initially-grudging free software 
author. Microsoft's Vinod Vallopillil, in the course of writing the 
competitive analysis of Linux that was leaked as the second of the 
famous "Halloween memoranda," bought and installed a Linux system on 
one of his office computers. He had trouble because the (commercial) 
Linux distribution he installed did not contain a daemon to handle 
the DHCP protocol for assignment of dynamic IP addresses. The result 
was important enough for us to risk another prolonged exposure to the 
Microsoft Writing Style:

        A small number of Web sites and FAQs later, I found an FTP 
site with a Linux DHCP client. The DHCP client was developed by an 
engineer employed by Fore Systems (as evidenced by his e-mail 
address; I believe, however, that it was developed in his own free 
time). A second set of documentation/manuals was written for the DHCP 
client by a hacker in Hungary which provided relatively simple 
instructions on how to install/load the client.

        I downloaded & uncompressed the client and typed two simple 
commands:

        Make - compiles the client binaries

        Make Install -installed the binaries as a Linux Daemon

        Typing "DHCPCD" (for DHCP Client Daemon) on the command line 
triggered the DHCP discovery process and voila, I had IP networking 
running. 

        Since I had just downloaded the DHCP client code, on an 
impulse I played around a bit. Although the client wasn't as 
extensible as the DHCP client we are shipping in NT5 (for example, it 
won't query for arbitrary options & store results), it was obvious 
how I could write the additional code to implement this 
functionality. The full client consisted of about 2,600 lines of 
code.

        One example of esoteric, extended functionality that was 
clearly patched in by a third party was a set of routines to that 
would pad the DHCP request with host-specific strings required by 
Cable Modem / ADSL sites.

        A few other steps were required to configure the DHCP client 
to auto-start and auto-configure my Ethernet interface on boot but 
these were documented in the client code and in the DHCP 
documentation from the Hungarian developer.

        I'm a poorly skilled UNIX programmer but it was immediately 
obvious to me how to incrementally extend the DHCP client code (the 
feeling was exhilarating and addictive).

        Additionally, due directly to GPL + having the full 
development environment in front of me, I was in a position where I 
could write up my changes and e-mail them out within a couple of 
hours (in contrast to how things like this would get done in NT). 
Engaging in that process would have prepared me for a larger, more 
ambitious Linux project in the future [29].

    "The feeling was exhilarating and addictive." Stop the presses: 
Microsoft experimentally verifies Moglen's Metaphorical Corollary to 
Faraday's Law. Wrap the Internet around every brain on the planet and 
spin the planet. Software flows in the wires. It's an emergent 
property of human minds to create. "Due directly to the GPL," as 
Vallopillil rightly pointed out, free software made available to him 
an exhilarating increase in his own creativity, of a kind not 
achievable in his day job working for the Greatest Programming 
Company on Earth. If only he had e-mailed that first addictive fix, 
who knows where he'd be now?

    So, in the end, my dwarvish friends, it's just a human thing. 
Rather like why Figaro sings, why Mozart wrote the music for him to 
sing to, and why we all make up new words: Because we can. Homo 
ludens, meet Homo faber. The social condition of global 
interconnection that we call the Internet makes it possible for all 
of us to be creative in new and previously undreamed-of ways. Unless 
we allow "ownership" to interfere. Repeat after me, ye dwarves and 
men: Resist the resistance!

    IV. Their Lordships Die in the Dark?

    For the IPdroid, fresh off the plane from a week at Bellagio paid 
for by Dreamworks SKG, it's enough to cause indigestion.

    Unlock the possibilities of human creativity by connecting 
everyone to everyone else? Get the ownership system out of the way so 
that we can all add our voices to the choir, even if that means 
pasting our singing on top of the Mormon Tabernacle and sending the 
output to a friend? No one sitting slack-jawed in front of a 
televised mixture of violence and imminent copulation carefully 
devised to heighten the young male eyeball's interest in a beer 
commercial? What will become of civilization? Or at least of 
copyright teachers?

    But perhaps this is premature. I've only been talking about 
software. Real software, the old kind, that runs computers. Not like 
the software that runs DVD players, or the kind made by the Grateful 
Dead. "Oh yes, the Grateful Dead. Something strange about them, 
wasn't there? Didn't prohibit recording at their concerts. Didn't 
mind if their fans rather riled the recording industry. Seem to have 
done all right, though, you gotta admit. Senator Patrick Leahy, isn't 
he a former Deadhead? I wonder if he'll vote to extend corporate 
authorship terms to 125 years, so that Disney doesn't lose The Mouse 
in 2004. And those DVD players - they're computers, aren't they?"

    In the digital society, it's all connected. We can't depend for 
the long run on distinguishing one bitstream from another in order to 
figure out which rules apply. What happened to software is already 
happening to music. Their recording industry lordships are now 
scrambling wildly to retain control over distribution, as both 
musicians and listeners realize that the middlepeople are no longer 
necessary. The Great Potemkin Village of 1999, the so-called Secure 
Digital Music Initiative, will have collapsed long before the first 
Internet President gets inaugurated, for simple technical reasons as 
obvious to those who know as the ones that dictated the triumph of 
free software [30]. The anarchist revolution in music is different 
from the one in software tout court, but here too - as any teenager 
with an MP3 collection of self-released music from unsigned artists 
can tell you - theory has been killed off by the facts. Whether you 
are Mick Jagger, or a great national artist from the third world 
looking for a global audience, or a garret-dweller reinventing music, 
the recording industry will soon have nothing to offer you that you 
can't get better for free. And music doesn't sound worse when 
distributed for free, pay what you want directly to the artist, and 
don't pay anything if you don't want to. Give it to your friends; 
they might like it.

    What happened to music is also happening to news. The wire 
services, as any U.S. law student learns even before taking the 
near-obligatory course in Copyright for Droids, have a protectible 
property interest in their expression of the news, even if not in the 
facts the news reports [31]. So why are they now giving all their 
output away? Because in the world of the Net, most news is commodity 
news. And the original advantage of the news gatherers, that they 
were internally connected in ways others were not when communications 
were expensive, is gone. Now what matters is collecting eyeballs to 
deliver to advertisers. It isn't the wire services that have the 
advantage in covering Kosovo, that's for sure. Much less those 
paragons of "intellectual" property, their television lordships. 
They, with their overpaid pretty people and their massive technical 
infrastructure, are about the only organizations in the world that 
can't afford to be everywhere all the time. And then they have to 
limit themselves to ninety seconds a story, or the eyeball hunters 
will go somewhere else. So who makes better news, the propertarians 
or the anarchists? We shall soon see.

    Oscar Wilde says somewhere that the problem with socialism is that 
it takes up too many evenings. The problems with anarchism as a 
social system are also about transaction costs. But the digital 
revolution alters two aspects of political economy that have been 
otherwise invariant throughout human history. All software has zero 
marginal cost in the world of the Net, while the costs of social 
coordination have been so far reduced as to permit the rapid 
formation and dissolution of large-scale and highly diverse social 
groupings entirely without geographic limitation [32]. Such 
fundamental change in the material circumstances of life necessarily 
produces equally fundamental changes in culture. Think not? Tell it 
to the Iroquois. And of course such profound shifts in culture are 
threats to existing power relations. Think not? Ask the Chinese 
Communist Party. Or wait 25 years and see if you can find them for 
purposes of making the inquiry.

    In this context, the obsolescence of the IPdroid is neither 
unforseeable nor tragic. Indeed it may find itself clanking off into 
the desert, still lucidly explaining to an imaginary room the 
profitably complicated rules for a world that no longer exists. But 
at least it will have familiar company, recognizable from all those 
glittering parties in Davos, Hollywood, and Brussels. Our Media Lords 
are now at handigrips with fate, however much they may feel that the 
Force is with them. The rules about bitstreams are now of dubious 
utility for maintaining power by co-opting human creativity. Seen 
clearly in the light of fact, these Emperors have even fewer clothes 
than the models they use to grab our eyeballs. Unless supported by 
user-disabling technology, a culture of pervasive surveillance that 
permits every reader of every "property" to be logged and charged, 
and a smokescreen of droid-breath assuring each and every young 
person that human creativity would vanish without the benevolent 
aristocracy of BillG the Creator, Lord Murdoch of Everywhere, the 
Spielmeister and the Lord High Mouse, their reign is nearly done. But 
what's at stake is the control of the scarcest resource of all: our 
attention. Conscripting that makes all the money in the world in the 
digital economy, and the current lords of the earth will fight for 
it. Leagued against them are only the anarchists: nobodies, hippies, 
hobbyists, lovers, and artists. The resulting unequal contest is the 
great political and legal issue of our time. Aristocracy looks hard 
to beat, but that's how it looked in 1788 and 1913 too. It is, as 
Chou En-Lai said about the meaning of the French Revolution, too soon 
to tell.

    About the Author

    Eben Moglen is Professor of Law & Legal History, Columbia Law 
School.
    E-mail: Mail: moglen en columbia.edu

    Acknowledgments

    This paper was prepared for delivery at the Buchmann International 
Conference on Law, Technology and Information, at Tel Aviv 
University, May 1999; my thanks to the organizers for their kind 
invitation. I owe much as always to Pamela Karlan for her insight and 
encouragement. I especially wish to thank the programmers throughout 
the world who made free software possible.

    Notes

    1. The distinction was only approximate in its original context. 
By the late 1960's certain portions of the basic operation of 
hardware were controlled by programs digitally encoded in the 
electronics of computer equipment, not subject to change after the 
units left the factory. Such symbolic but unmodifiable components 
were known in the trade as "microcode," but it became conventional to 
refer to them as "firmware." Softness, the term "firmware" 
demonstrated, referred primarily to users' ability to alter symbols 
determining machine behavior. As the digital revolution has resulted 
in the widespread use of computers by technical incompetents, most 
traditional software - application programs, operating systems, 
numerical control instructions, and so fort - is, for most of its 
users, firmware. It may be symbolic rather than electronic in its 
construction, but they couldn't change it even if they wanted to, 
which they often - impotently and resentfully - do. This "firming of 
software" is a primary condition of the propertarian approach to the 
legal organization of digital society, which is the subject of this 
paper.

    2. Within the present generation, the very conception of 
social "development" is shifting away from possession of heavy 
industry based on the internal-combustion engine to "post-industry" 
based on digital communications and the related "knowledge-based" 
forms of economic activity.

    3. Actually, a moment's thought will reveal, our genes are 
firmware. Evolution made the transition from analog to digital before 
the fossil record begins. But we haven't possessed the power of 
controlled direct modification. Until the day before yesterday. In 
the next century the genes too will become software, and while I 
don't discuss the issue further in this paper, the political 
consequences of unfreedom of software in this context are even more 
disturbing than they are with respect to cultural artifacts.

    4. See, e.g., J. M. Balkin, 1998. Cultural Software: a Theory of 
Ideology. New Haven: Yale University Press.

    5. See Henry Sumner Maine, 1861. Ancient Law: Its Connection with 
the Early History of Society, and Its Relation to Modern Idea. First 
edition. London: J. Murray.

    6. In general I dislike the intrusion of autobiography into 
scholarship. But because it is here my sad duty and great pleasure to 
challenge the qualifications or bona fides of just about everyone, I 
must enable the assessment of my own. I was first exposed to the 
craft of computer programming in 1971. I began earning wages as a 
commercial programmer in 1973 - at the age of thirteen - and did so, 
in a variety of computer services, engineering, and multinational 
technology enterprises, until 1985. In 1975 I helped write one of the 
first networked e-mail systems in the United States; from 1979 I was 
engaged in research and development of advanced computer programming 
languages at IBM. These activities made it economically possible for 
me to study the arts of historical scholarship and legal cunning. My 
wages were sufficient to pay my tuitions, but not - to anticipate an 
argument that will be made by the econodwarves further along - 
because my programs were the intellectual property of my employer, 
but rather because they made the hardware my employer sold work 
better. Most of what I wrote was effectively free software, as we 
shall see. Although I subsequently made some inconsiderable technical 
contributions to the actual free software movement this paper 
describes, my primary activities on its behalf have been legal: I 
have served for the past five years (without pay, naturally) as 
general counsel of the Free Software Foundation.

    7. The player, of course, has secondary inputs and outputs in 
control channels: buttons or infrared remote control are input, and 
time and track display are output.

    8. This is not an insight unique to our present enterprise. A 
closely-related idea forms one of the most important principles in 
the history of Anglo-American law, perfectly put by Toby Milsom in 
the following terms:

        The life of the common law has been in the abuse of its 
elementary ideas. If the rules of property give what now seems an 
unjust answer, try obligation; and equity has proved that from the 
materials of obligation you can counterfeit the phenomena of 
property. If the rules of contract give what now seems an unjust 
answer, try tort. ... If the rules of one tort, say deceit, give what 
now seems an unjust answer, try another, try negligence. And so the 
legal world goes round.

    S.F.C. Milsom, 1981. Historical Foundations of the Common Law. 
Second edition. London: Butterworths, p. 6.

    9. See Isaiah Berlin, 1953. The Hedgehog and the Fox: An Essay on 
Tolstoy's View of History. New York: Simon and Schuster.

    10. See The Virtual Scholar and Network Liberation.

    11. Some basic vocabulary is essential. Digital computers actually 
execute numerical instructions: bitstrings that contain information 
in the "native" language created by the machine's designers. This is 
usually referred to as "machine language." The machine languages of 
hardware are designed for speed of execution at the hardware level, 
and are not suitable for direct use by human beings. So among the 
central components of a computer system are "programming languages," 
which translate expressions convenient for humans into machine 
language. The most common and relevant, but by no means the only, 
form of computer language is a "compiler." The compiler performs 
static translation, so that a file containing human-readable 
instructions, known as "source code" results in the generation of one 
or more files of executable machine language, known as "object code."

    12. This, I should say, was the path that most of my research and 
development followed, largely in connection with a language called 
APL ("A Programming Language") and its successors. It was not, 
however, the ultimately-dominant approach, for reasons that will be 
suggested below.

    13. This description elides some details. By the mid-1970's IBM 
had acquired meaningful competition in the mainframe computer 
business, while the large-scale antitrust action brought against it 
by the U.S. government prompted the decision to "unbundle," or charge 
separately, for software. In this less important sense, software 
ceased to be free. But - without entering into the now-dead but 
once-heated controversy over IBM's software pricing policies - the 
unbundling revolution had less effect on the social practices of 
software manufacture than might be supposed. As a fellow responsible 
for technical improvement of one programming language product at IBM 
from 1979 to 1984, for example, I was able to treat the product 
as "almost free," that is, to discuss with users the changes they had 
proposed or made in the programs, and to engage with them in 
cooperative development of the product for the benefit of all users.

    14. This description is highly compressed, and will seem both 
overly simplified and unduly rosy to those who also worked in the 
industry during this period of its development. Copyright protection 
of computer software was a controversial subject in the 1970's, 
leading to the famous CONTU commission and its mildly pro-copyright 
recommendations of 1979. And IBM seemed far less cooperative to its 
users at the time than this sketch makes out. But the most important 
element is the contrast with the world created by the PC, the 
Internet, and the dominance of Microsoft, with the resulting impetus 
for the free software movement, and I am here concentrating on the 
features that express that contrast.

    15. I discuss the importance of PC software in this context, the 
evolution of "the market for eyeballs" and "the sponsored life" in 
other chapters of my forthcoming book, The Invisible Barbecue, of 
which this essay forms a part.

    16. This same pattern of ambivalence, in which bad programming 
leading to widespread instability in the new technology is 
simultaneously frightening and reassuring to technical incompetents, 
can be seen also in the primarily-American phenomenon of Y2K 
hysteria.

    17. The critical implications of this simple observation about our 
metaphors are worked out in "How Not to Think about 'The Internet'," 
in The Invisible Barbecue, forthcoming.

    18. Technical readers will again observe that this compresses 
developments occurring from 1969 through 1973.

    19. Operating systems, even Windows (which hides the fact from its 
users as thoroughly as possible), are actually collections of 
components, rather than undivided unities. Most of what an operating 
system does (manage file systems, control process execution, etc.) 
can be abstracted from the actual details of the computer hardware on 
which the operating system runs. Only a small inner core of the 
system must actually deal with the eccentric peculiarities of 
particular hardware. Once the operating system is written in a 
general language such as C, only that inner core, known in the trade 
as the kernel, will be highly specific to a particular computer 
architecture.

    20. A careful and creative analysis of how Torvalds made this 
process work, and what it implies for the social practices of 
creating software, was provided by Eric S. Raymond in his seminal 
1997 paper, The Cathedral and the Bazaar, which itself played a 
significant role in the expansion of the free software idea.

    21. This is a quotation from what is known in the trade as 
the "Halloween memo," which can be found, as annotated by Eric 
Raymond, to whom it was leaked, at 
http://www.opensource.org/halloween/halloween1.html.

    22. As recently as early 1994 a talented and technically competent 
(though Windows-using) law and economics scholar at a major U.S. law 
school confidently informed me that free software couldn't possibly 
exist, because no one would have any incentive to make really 
sophisticated programs requiring substantial investment of effort 
only to give them away.

    23. This question too deserves special scrutiny, encrusted as it 
is with special pleading on the state-power side. See my brief 
essay "So Much for Savages: Navajo 1, Government 0 in Final Moments 
of Play."

    24. See GNU General Public License, Version 2, June 1991.

    25. V. Vallopillil, Open Source Software: A (New?) Development 
Methodology.

    26. The looming expiration of Mickey Mouse's ownership by Disney 
requires, from the point of view of that wealthy "campaign 
contributor," for example, an alteration of the general copyright law 
of the United States. See "Not Making it Any More? Vaporizing the 
Public Domain," in The Invisible Barbecue, forthcoming.

    27. A recent industry estimate puts the number of Linux systems 
worldwide at 7.5 million. See Josh McHugh, 1998. "Linux: The Making 
of a Global Hack," Forbes (August 10). Because the software is freely 
obtainable throughout the Net, there is no simple way to assess 
actual usage.

    28. Eric Raymond is a partisan of the "ego boost" theory, to which 
he adds another faux-ethnographic comparison, of free software 
composition to the Kwakiutl potlatch. See Eric S. Raymond, 1998. 
Homesteading the Noosphere.. But the potlatch, certainly a form of 
status competition, is unlike free software for two fundamental 
reasons: it is essentially hierarchical, which free software is not, 
and, as we have known since Thorstein Veblen first called attention 
to its significance, it is a form of conspicuous waste. See Thorstein 
Veblen, 1967. The Theory of the Leisure Class. New York: Viking, p. 
75. These are precisely the grounds which distinguish the 
anti-hierarchical and utilitiarian free software culture from its 
propertarian counterparts.

    29. Vinod Vallopillil, Linux OS Competitive Analysis (Halloween 
II). Note Vallopillil's surprise that a program written in California 
had been subsequently documented by a programmer in Hungary.

    30. See "They're Playing Our Song: The Day the Music Industry 
Died," in The Invisible Barbecue, forthcoming.

    31. International News Service v. Associated Press, 248 U.S. 215 
(1918). With regard to the actual terse, purely functional 
expressions of breaking news actually at stake in the jostling among 
wire services, this was always a distinction only a droid could love.

    32. See "No Prodigal Son: The Political Theory of Universal 
Interconnection," in The Invisible Barbecue, forthcoming.

    Contents Index

    Copyright © 1999, First Monday