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Hello World Intellectual Freedom Organization

Saturday, April 25th, 2015

Today I’m soft launching an initiative that I’ve been thinking about for 20 years, obtained a domain name for in 1998, blogged about once in 2004, and the last few years have been exploring on this blog without naming it. See the first items in my annual thematic doubt posts for 2013 and 2014: “protecting and promoting intellectual freedom, in particular through the mechanisms of free/open/knowledge commons movements, and in reframing information and innovation policy with freedom and equality outcomes as top.”

I call it the World Intellectual Freedom Organization (WIFO).

Read about its theory, why a new organization, proposed activities, and how you can help/get involved.

Why today? Because April 26 is World Intellectual Freedom Day, occupying and displacing World Intellectual Property Day, just as intellectual freedom must occupy and displace intellectual property for a good future. Consider this 0th World Intellectual Freedom Day another small step forward, following last year’s Without Intellectual Property Day.

Why a soft launch? Because I’m eager to be public about WIFO, but there’s tons of work to do before it can properly be considered launched. I’ve been getting feedback from a handful of people on a quasi-open fellowship proposal for WIFO (that’s where the activities link above points to) and apologize to the many other people I should’ve reached out to. Well, now I’m doing that. I want your help in this project of world liberation!

Video version of my proposal at the Internet Archive or YouTube. My eyes do not lie, I am reading in an attempt to fit too much material in 5 minutes.

I’ll probably blog much less here about “IP” and commons/free/libre/open issues here from now on, especially after opening a WIFO blog (for now there’s a Discourse forum; most of the links above point there). Not to worry, I am overflowing with idiosyncratic takes on everything else, and will continue to post accordingly here, as much as time permits. ☻

Be sure to celebrate the 0th World Intellectual Freedom Day, even if only momentarily and with your lizard brain.

2 great Document Freedom Day announcements

Thursday, March 26th, 2015

Yesterday (March 25) was again Document Freedom Day, a celebration of open standards. Rather than my usual critical cheering, this year I took to adding all of my pertinent posts to a free/libre/open formats/protocols/standards category and want to highlight two exciting announcements:

(1) IETF NetVC BoF notes, slides:

Goals for the Proposed WG

  • Development of a video codec that is:
    • Optimized for real-time communications over the public Internet
    • Competitive with or superior to existing modern codecs
    • Viewed as having IPR licensing terms that allow for wide implementation and deployment
    • Developed under the IPR rules in BCP 78 (RFC 5378) and BCP 79 (RFCs 3979 and 4879)
  • Replicate the success of the CODEC WG in producing the Opus audio codec.

For more on why this is exciting, see Opus! and “I would love it if all patents evaporated” (WebRTC). Appropriately, yesterday also brought another blog-like post (discussion) on the development of the Daala codec, which could form the basis of the hoped-for IETF standard.

(2) LibreOffice Online is coming. If successful it will fill a major gap in the free software product line. I worried about this gap the last time I congratulated LibreOffice on another release.

Defensive Patent License 1.1 w/diff

Tuesday, December 9th, 2014

13 months ago I wrote about the Defensive Patent License, in particular in relation to free/open source software (followup, 1993 predecessor). Today the DPL project released DPL 1.1 and announced the first licensor; see Internet Archive and EFF posts.

(The EFF post references its earlier guide to alternative patent licensing which I meant to critique, probably along lines of a partially overalpping guide to reform proposals, see patent reform, parts deficient in commons and compare with protect commons from patents. I noticed today that one of the other alternative licensing schemes, License On Transfer, seems to be getting some uptake.)

Most of what I wrote previously about the DPL concept still applies with DPL 1.1 (interesting concept, possibility of substantial good impact in long term). The new version makes one major improvement (especially in relation to FLOSS) — the exclusion of “clone” products or services from the license grant has been removed. Another small (as in a -3 words difference) improvement is that alleging patent invalidity against another DPL user no longer breaches one’s licenses (only alleging infringement does), invalidation being a defensive tactic.

DPL 1.1 also adds the requirement of explicit acceptance, which strikes me as burdensome: one must research licensed patents in order to figure out which DPL users to contact with acceptance, or regularly contact all known DPL users with acceptance of all licensed patents. I understand from the DPL 1.1 announcement telecon that formal acceptance was added because the license grant is more likely to stand up in court with such explicit acceptance, with that more likely assessment based on differences between patent and copyright, and between clubs and public licenses — and further that the “contact all known DPL users” practice will in the future be facilitated by the DPL website.

Finally, a very minor issue: DPL 1.1 reproduces the GPL’s confusing three-option version compatibility scheme (this-version-or-later, only-this-version, or any-version-if-none-specified). If one must have options, I consider less confusing this-version-or-later as default, with option to explicitly mandate only-this-version.

Congratulations and thanks to Jason Schultz, Jennifer Urban, Brewster Kahle, John Gilmore, and others for getting the DPL into production. I hope it is wildly successful; check out the DPL website and help update the Wikipedia article.

Following is a wdiff between DPL 1.0 and 1.1 in two parts (because 1.0 put definitions at the beginning, 1.1 puts them at the end) below, excluding 1.1’s preface, which has no equivalent in 1.0.

DPL 1.0-1.1 wdiff: Grant, conditions, etc.

[-2.-]{+1.+} License Grant

Subject to the conditions and limitations of this [-License and upon-]
[-affirmative assent to the commitments specified in Section 1.7 from an-]
[-individual DPL User,-] {+License,+} Licensor hereby
grants and agrees to grant to [-such-] {+any+} DPL User {+(as defined in Section 7.6) who+}
{+follows the procedures for License Acceptance (as defined in Section 1.1)+}
a worldwide, royalty-free, no-charge, non-exclusive, irrevocable (except
as stated in Sections [-3(e)-] {+2(e)+} and [-3(f))-] {+2(f))+} license, perpetual for the term of
the relevant Licensed Patents, to make, have made, use, sell, offer for
sale, import, and distribute Licensed Products and Services that would
otherwise infringe any claim of Licensed Patents. A Licensee’s sale
of Licensed Products and Services pursuant to this agreement exhausts
the Licensor’s ability to assert infringement [-by-] {+against+} a downstream
purchaser or user of the Licensed Products or Services.

[-2.1-] {+Licensor’s+}
{+obligation to grant Licenses under this provision ceases upon the arrival+}
{+of any applicable Discontinuation Date, unless that Date is followed by+}
{+a subsequent Offering Announcement.+}
{++}
{+1.1+} License Acceptance

In order to accept this License, Licensee must {+qualify as a DPL User+}
{+(as defined in Section 7.6) and must+} contact Licensor via the
[-contact-] information
provided in [-Section 1.16 and-] {+Licensor’s Offering Announcement to+} state affirmatively that
Licensee accepts the terms of this License. Licensee must also {+communicate+}
{+the URL of its own Offering Announcement (as defined in Section 7.13) and+}
specify whether it is accepting the License to all Licensor’s Patents or
only a subset of those Patents. If Licensee is only accepting the License
to a subset of Licensor’s Patents, Licensee must specify each individual
{+Patent’s country of issuance and corresponding+} patent [-by patent number.-]
[--]
[-3.-] {+number for which+}
{+it is accepting a License. There is no requirement that the Licensor+}
{+respond to the Licensee’s affirmative acceptance of this License.+}
{++}
{+2.+} License Restrictions

Notwithstanding the foregoing, this License is expressly subject to and
limited by the following restrictions:

(a) No Sublicensing. This License does not include the right to sublicense
any Licensed Patent of any Licensor.

(b) License Extends Solely to Licensed Patents in Connection with Licensed
Products and Services. For clarity, this License does not purport to
grant any rights in any Licensor’s copyright, trademark, trade dress,
design, trade secret, other intellectual property, or any other rights of
Licensor other than the rights to Licensed Patents granted in Section 2,
nor does the License cover products or services other than the Licensed
Products and Services.  {+For example, this License would not apply to+}
{+any conduct of a Licensee that occurred prior to accepting this License+}
{+under Section 1.1.+}

(c) Scope. This License does not include Patents with a priority date
or Effective Filing Date later than Licensor’s last Discontinuation
Date that has not been followed by a subsequent Offering Announcement
by Licensor.

(d) Future DPL Users. This License does not extend to any DPL User whose
Offering Announcement occurs later than Licensor’s last Discontinuation
Date that has not been followed by a subsequent Offering Announcement
by Licensor.

(e) Revocation and Termination Rights. Licensor reserves the right to
revoke and/or terminate this License with respect to a particular Licensee [-if:-]
{+if, after the date of the Licensee’s most recent Offering Announcement:+}
{++}
{+i.+} Licensee makes any Infringement Claim, not including Defensive Patent
Claims, against a DPL User; or

{+ii.+} Licensee {+assigns, transfers, or+} grants an exclusive [-license,-]
[-    with the right to sue, or assigns or transfers-] {+license for+}
a Patent to an entity or individual other than a DPL User without
conditioning the [-transfer-] {+assignment, transfer, or exclusive license+} on the [-transferee-]
{+recipient+} continuing to abide by the terms of this [-License.-] {+License, including but+}
{+not limited to the revocation and termination rights under this Section.+}

(f) Optional Conversion to FRAND Upon Discontinuation. [-As-] {+Notwithstanding+}
{+any other provision in this License, as+} of any particular Licensee’s
Discontinuation Date, Licensor has the right to convert the License of
that particular Licensee from one that is royalty-free and no-charge to
one that is subject to Fair, Reasonable, And Non-Discriminatory (FRAND) [-terms.-]
[--]
[-4.-]
{+terms going forward. No other terms in the license may be altered in+}
{+any way under this provision.+}
{++}
{+3.+}        Versions of the License

[-4.1-]

{+(a)+} New Versions

The DPL [-Foundation is-] {+Foundation, Jason M. Schultz of New York University, and Jennifer+}
{+M. Urban of the University of California at Berkeley are+} the license [-steward. No-]
{+stewards. Unless otherwise designated by one of the license stewards,+}
{+no+} one other than the license [-steward-] {+stewards+} has the right to modify or publish
new versions of this License. Each version will be given a distinguishing
version number.

[-4.2-]

{+(b)+} Effect of New {+or Revised+} Versions

[-Licensed Products and Services-]

{+Any one of the license stewards+} may {+publish revised and/or new versions+}
{+of the DPL from time to time. Such new versions will+} be [-used, made, sold, offered for sale,-]
[-imported, or distributed under-] {+similar in spirit+}
{+to+} the [-terms-] {+present version, but may differ in detail to address new problems+}
{+or concerns.+}
{++}
{+Each version is given a distinguishing version number. If Licensor+}
{+specifies in her Offering Announcement that she is offering a certain+}
{+numbered version+} of the [-version-] {+DPL “or any later version”, Licensee+}
{+has the option+} of {+following+} the [-License-]
[-originally accepted pursuant to Section 2.1,-] {+terms and conditions either of that+}
{+numbered version+} or [-under-] {+of any later version published by one of+} the [-terms-] {+license+}
{+stewards. If Licensor does not specify a version number+} of {+the DPL in+}
{+her Offering Announcement, Licensee may choose+} any
[-subsequent-] version {+ever+} published
by {+any of+} the license [-steward.-]
[--]
[-5.-] {+stewards.+}
{++}
{+4.+}        Disclaimer of Claims Related to Patent Validity and [-Noninfringement.-]
{+Noninfringement+}

Licensor makes no representations and disclaims any and all warranties
as to the validity of the Licensed Patents or [-that-] {+the+} products or processes
covered by Licensed Patents do not infringe the patent, copyright,
trademark, trade secret, or other intellectual property rights of any
other party.

[-6.-]

{+5.+}        Disclaimer of [-Warranties.-] {+Warranties+}

UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING,
LICENSOR OFFERS THE PATENT LICENSE GRANTED HEREIN “AS IS” AND
MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE
LICENSED PATENTS OR ANY PRODUCT EMBODYING ANY LICENSED PATENT, EXPRESS
OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF TITLE, [-MERCHANTIBILITY,-] {+MERCHANTABILITY,+} FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMENT, OR THE PRESENCE OR ABSENCE OF ERRORS, REGARDLESS OF THEIR
DISCOVERABILITY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES, IN WHICH CASE SUCH EXCLUSION MAY NOT APPLY TO LICENSEE.

[-7.-]

{+6.+}        Limitation of [-Liability.-] {+Liability+}

LICENSOR SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM OR RELATED TO
THIS LICENSE, INCLUDING INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR
SPECIAL DAMAGES, WHETHER ON WARRANTY, CONTRACT, NEGLIGENCE, OR OTHERWISE,
EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
PRIOR TO SUCH AN OCCURRENCE.

DPL 1.0-1.1 wdiff: Definitions

[-1.-]{+7.+} Definitions

[-1.1-]

{+7.1+} “Affiliate” means a corporation, partnership, or other entity in
which the Licensor or Licensee possesses more than fifty percent (50%) of
the ownership interest, representing the right to make the decisions for
such corporation, partnership or other entity which is now or hereafter,
owned or controlled, directly or indirectly, by Licensor or Licensee.

[-1.2  “Clone Products or Services” means products or services of-]
[-Licensee that include the same or substantially identical functionality of-]
[-all or a commercially substantial portion of a prior released product or-]
[-service of a Licensor and implement the same or a substantially identical-]
[-proprietary user interface of the prior product or service.-]
[--]
[-1.3-]

{+7.2+} “Defensive Patent Claim” means an Infringement Claim against a
DPL User made in response to a pending prior Infringement Claim by said
DPL User against the asserter of the Defensive Patent Claim.

[-1.4-]

{+7.3+} “Discontinuation Announcement” means a DPL User’s announcement
that:

{+(a)+} declares the DPL User’s intent to discontinue offering to license
its Licensed Patents under the DPL, effective as of the Discontinuation
Date; and

{+(b)+} contains the DPL [-User's-] {+User’s+} contact information for licensing purposes;
and [-is submitted to the DPL-]
[-    Website via the Websites's official email address-]

{+(c)+} at least 180 days prior to [-a-] {+the+} Discontinuation [-Date;-] {+Date is posted to a+}
{+publicly accessible website;+} and

{+(d)+} at least 180 days prior to the Discontinuation Date is [-posted to a publicly accessible-]
[-    indexed-] {+communicated+}
{+reasonably and promptly, along with the URL of the+} website [-controlled-] {+mentioned in+}
{+subsection (c) of this provision,+} by the {+discontinuing+} DPL User [-using a URL accessible-]
[-    via at least the following syntax: "http://www.NAME.com/DPL" or-]
[-    "http://www.NAME.com/defensivepatentlicense" where "NAME" is-] {+to every+}
{+Licensor of+} a [-name-]
[-    commonly associated with-] {+Patent to which+} the {+discontinuing+} DPL [-user, such as-] {+User is+} a [-company name.-]
[--]
[-1.5-] {+Licensee.+}
{++}
{+7.4+} “Discontinuation Date” means the date a DPL User specifies in
[-their-]
{+its+} Discontinuation Announcement to discontinue offering to license its
Licensed Patents under the DPL, which must be at least 180 days after
the date of an individual or entity’s most recent Discontinuation
Announcement.

[-1.6-]

{+7.5+} “DPL” and “License” mean the grant, conditions, and
limitations herein.

[-1.7-]

{+7.6+} “DPL User” means an entity or individual that:

{+(a)+} has committed to offer a license to each of its Patents under the [-DPL, or, if such entity or individual has no Patents, has-]
[-    committed to offer a license to any Patents it may obtain in the-]
[-    future under the-]
DPL; and

{+(b)+} has declared such commitment by means of an Offering Announcement; and

{+(c)+} if the entity or individual has made a Discontinuation Announcement,
the Discontinuation Date has not yet occurred; and

{+(d)+} has not engaged in the conduct described in either Sections [-3(e)(i)-] {+2(e)(i)+}
or [-3(e)(ii).-]
[--]
[-1.8 “DPL Website” means the website-]
[-at http://www.defensivepatentlicense.org,-]
[-http://www.defensivepatentlicense.com, or any future site designated by-]
[-the DPL Foundation.-]
[--]
[-1.9-] {+2(e)(ii).+}
{++}
{+7.7+} “Effective Filing Date” is the effective filing date determined
by the applicable patent office that issued the relevant Licensed Patent.

[-1.10 “Foundry Services or Products” means services provided by-]
[-Licensee to, or products manufactured by Licensee for or on behalf of,-]
[-a specific third party, using designs or specifications received in-]
[-a substantially completed form from that third party, for resale or-]
[-relicense to or on behalf of that third party. This definition will not-]
[-apply when:-]
[--]
[-    Licensee or its Affiliate owns the design or specification of such-]
[-    service or product and the service or product is not specifically-]
[-    designed for commercial exploitation substantially only by such third-]
[-    party; or such design or specification resulted from a bona fide joint-]
[-    development or joint participation between Licensee or its Affiliate-]
[-    and such third party, including but not limited to a standards body-]
[-    or community organization and the resulting products, services or-]
[-    components provided by Licensee or its Affiliate meet the definition-]
[-    of Licensed Services Product or Products as set forth herein; or-]
[-    the third party recipient of the products or services is a DPL User.-]
[--]
[-1.11-]

{+7.8+} “Infringement Claim” means any legal action, proceeding or
procedure for the resolution of a controversy in any jurisdiction in
the world, whether created by a claim, counterclaim, or cross-claim,
alleging patent [-infringement or patent invalidity.-] {+infringement.+} Such actions, proceedings, or procedures
shall include, but not be limited to, lawsuits brought in state or
federal court, binding arbitrations, and administrative actions such as
a proceeding before the International Trade Commission.

[-1.12-]

 {+7.9+} “Licensed Patents” means any and all Patents (a) owned or
 controlled by Licensor; or (b) under which Licensor has the right
 to grant licenses without the consent of or payment to a third party
 (other than an employee inventor).

[-1.13-]

{+7.10+} “Licensed Products and Services” means any products, services
or other activities of a Licensee that practice one or more claims of
one or more Licensed Patents of a [-Licensor, but excluding Foundry Services-]
[-or Products and Clone Products or Services.-]
[--]
[-1.14-] {+Licensor.+}
{++}
{+7.11+} “Licensee” means any individual, corporation, partnership or
other entity exercising rights granted by the Licensor under this License
including all Affiliates of such entity.

[-1.15-]

{+7.12+} “Licensor” means any individual, corporation, partnership or
other entity with the right to grant licenses in Licensed Patents under
this License, including any Affiliates of such entity.

[-1.16-]

 {+7.13+} “Offering Announcement” means a Licensor’s announcement that:

{+(a)+} declares the Licensor’s commitment to offer a [-license to-] {+Defensive Patent+}
{+License for any of+} its Patents
    [-under the DPL, or, if such Licensor has no Patents, the commitment to-]
[-    offer a license-] to any [-Patents it may obtain in the future under the-]
[-    DPL;-] {+DPL User;+} and

{+(b)+} contains the Licensor’s contact information for licensing purposes;
and [-is submitted to the DPL Website via the Website’s-]
[-    official email address; and-]

{+(c)+} is posted to a publicly accessible
    [-indexed website controlled by Licensor using a URL accessible-]
[-    via at least-] {+website.+}
{++}
{+An Offering Announcement may, but is not required to, specify the+}
{+particular version of the DPL that+} the [-following syntax: "http://www.NAME.com/DPL" or-]
[-    "http://www.NAME.com/defensivepatentlicense" where "NAME"-] {+Licensor+} is {+committed to+}
{+offering. It may also specify+} a [-name-]
[-    commonly associated with Licensor, such as a company name.-]
[--]
[-1.17-] {+particular version of the DPL “or any+}
{+later version” to allow Licensees to accept subsequent new or revised+}
{+versions of the DPL.+}
{++}
{+7.14+} “Patent” means any right, whether now or later acquired,
under any national or international patent law issued by a governmental
body authorized to issue such rights. For clarity, this definition
includes any rights that may arise in patent applications, utility
models, granted patents, including, but not limited to, continuations,
continuations-in-part, divisionals, provisionals, results of any patent
reexaminations, and reissues, but excluding design patents or design
registrations.

copyleft.org

Monday, December 1st, 2014

Last month the Free Software Foundation and Software Freedom Conservancy launched copyleft.org, “a collaborative project to create and disseminate useful information, tutorial material, and new policy ideas regarding all forms of copyleft licensing.” The main feature of the project now is a 157 page tutorial on the GPL which assembles material developed over the past 10 years and a new case study. I agreed to write a first draft of material covering CC-BY-SA, the copyleft license most widely used for non-software works. My quote in the announcement: “I’m glad to bring my knowledge about the Creative Commons copyleft licenses as a contribution to improve further this excellent tutorial text, and I hope that copyleft.org as a whole can more generally become a central location to collect interesting ideas about copyleft policy.”

I tend to offer apologia to copyleft detractors and criticism to copyleft advocates, and cheer whatever improvements to copyleft licenses can be mustered (I hope to eventually write a cheery post about the recent compatibility of CC-BY-SA and the Free Art License), but I’m far more interested in copyleft licenses as prototypes for non-copyright policy.

For now, below is that first draft. It mostly stands alone, but might be merged in pieces as the tutorial is restructured to integrate material about non-GPL and non-software copyleft licenses. Your patches and total rewrites welcome!


Detailed Analysis of the Creative Commons Attribution-ShareAlike Licenses

This tutorial gives a comprehensive explanation of the most popular free-as-in-freedom copyright licenses for non-software works, the Creative Commons Attribution-ShareAlike (“CC-BY-SA”, or sometimes just “BY-SA”) – with an emphasis on the current version 4.0 (“CC-BY-SA-4.0”).

Upon completion of this part of the tutorial, readers can expect to have learned the following:

  • The history and role of copyleft licenses for non-software works.
  • The differences between the GPL and CC-BY-SA, especially with respect to copyleft policy.
  • The basic differences between CC-BY-SA versions 1.0, 2.0, 2.5, and 4.0.
  • An understanding of how CC-BY-SA-4.0 implements copyleft.
  • Where to find more resources about CC-BY-SA compliance.

FIXME this list should be more aggressive, but material is not yet present

WARNING: As of November 2014 this part is brand new, and badly needs review, referencing, expansion, error correction, and more.

Freedom as in Free Culture, Documentation, Education…

Critiques of copyright’s role in concentrating power over and making culture inaccessible have existed throughout the history of copyright. Few contemporary arguments about “copyright in the digital age” have not already been made in the 1800s or before. Though one can find the occasional ad hoc “anti-copyright”, “no rights reserved”, or pro-sharing statement accompanying a publication, use of formalized public licenses for non-software works seems to have begun only after the birth of the free software movement and of widespread internet access among elite populations.

Although they have much older antecedents, contemporary movements to create, share, and develop policy encouraging “cultural commons”, “open educational resources”, “open access scientific publication” and more, have all come of age in the last 10-15 years – after the huge impact of free software was unmistakable. Additionally, these movements have tended to emphasize access, with permissions corresponding to the four freedoms of free software and the use of fully free public licenses as good but optional.

It’s hard not to observe that it seems the free software movement arose more or less shortly after as it became desirable (due to changes in the computing industry and software becoming unambiguously subject to copyright in the United States by 1983), but non-software movements for free-as-in-freedom knowledge only arose after they became more or less inevitable, and only begrudgingly at that. Had a free culture “constructed commons” movement been successful prior to the birth of free software, the benefits to computing would have been great – consider the burdens of privileged access to proprietary culture for proprietary software through DRM and other mechanisms, toll access to computer science literature, and development of legal mechanisms and policy through pioneering trial-and-error.

Alas, counterfactual optimism does not change the present – but might embolden our visions of what freedom can be obtained and defended going forward. Copyleft policy will surely continue to be an important and controversial factor, so it’s worth exploring the current version of the most popular copyleft license intended for use with non-software works, Creative Commons Attribution-ShareAlike 4.0 International (CC-BY-SA-4.0), the focus of this tutorial.

Free Definitions

When used to filter licenses, the Free Software Definition and Open Source Definition have nearly identical results. For licenses primarily intended for non-software works, the Definition of Free Cultural Works and Open Definition similarly have identical results, both with each other and with the software definitions which they imitate. All copyleft licenses for non-software works must be “free” and “open” per these definitions.

There are various other definitions of “open access”, “open content”, and “open educational resources” which are more subject to interpretation or do not firmly require the equivalent of all four freedoms of the free software definition. While these definitions are not pertinent to circumscribing the concept of copyleft – which is about enforcing all four freedoms, for everyone. But copyleft licenses for non-software works are usually considered “open” per these other definitions, if they are considered at all.

The open access to scientific literature movement, for example, seems to have settled into advocacy for non-copyleft free licenses (CC-BY) on one hand, and acceptance of highly restrictive licenses or access without other permissions on the other. This creates practical problems: for example, nearly all scientific literature either may not be incorporated into Wikipedia (which uses CC-BY-SA) or may not incorporate material developed on Wikipedia – both of which do happen, when the licenses allow it. This tutorial is not the place to propose solutions, but let this problem be a motivator for encouraging more widespread understanding of copyleft policy.

Non-software Copylefts

Copyleft is a compelling concept, so unsurprisingly there have been many attempts to apply it to non-software works – starting with use of GPLv2 for documentation, then occasionally for other texts, and art in various media. Although the GPL was and is perfectly usable for any work subject to copyright, several factors were probably important in preventing it from being the dominant copyleft outside of software:

  • the GPL is clearly intended first as a software license, thus requiring some perspective to think of applying to non-software works;
  • the FSF’s concern is software, and the organization has not strongly advocated for using the GPL for non-software works;
  • further due to the (now previous) importance of its hardcopy publishing business and desire to retain the ability to take legal action against people who might modify its statements of opinion, FSF even developed a non-GPL copyleft license specifically for documentation, the Free Documentation License (FDL; which ceases to be free and thus is not a copyleft if its “invariant sections” and similar features are used);
  • a large cultural gap and lack of population overlap between free software and other movements has limited knowledge transfer and abetted reinvention and relearning;
  • the question of what constitutes source (“preferred form of the work for making modifications”) for many non-software works.

As a result, several copyleft licenses for non-software works were developed, even prior to the existence of Creative Commons. These include the aforementioned FDL (1998), Design Science License (1999), Open Publication License (1999; like the FDL it has non-free options), Free Art License (2000), Open Game License (2000; non-free options), EFF Open Audio License (2001), LinuxTag Green OpenMusic License (2001; non-free options) and the QING Public License (2002). Additionally several copyleft licenses intended for hardware designs were proposed starting in the late 1990s if not sooner (the GPL was then and is now also commonly used for hardware designs, as is now CC-BY-SA).1

At the end of 2002 Creative Commons launched with 11 1.0 licenses and a public domain dedication. The 11 licenses consisted of every non-mutually exclusive combination of at least one of the Attribution (BY), NoDerivatives (ND), NonCommercial (NC), and ShareAlike (SA) conditions (ND and SA are mutually exclusive; NC and ND are non-free). Three of those licenses were free (as was the public domain dedication), two of them copyleft: CC-SA-1.0 and CC-BY-SA-1.0.

Creative Commons licenses with the BY condition were more popular, so the 5 without (including CC-SA) were not included in version 2.0 of the licenses. Although CC-SA had some advocates, all who felt very strongly in favor of free-as-in-freedom, its incompatibility with CC-BY-SA (meaning had CC-SA been widely used, the copyleft pool of works would have been further fragmented) and general feeling that Creative Commons had created too many licenses led copyleft advocates who hoped to leverage Creative Commons to focus on CC-BY-SA.

Creative Commons began with a small amount of funding and notoriety, but its predecessors had almost none (FSF and EFF had both, but their entries were not major focuses of those organizations), so Creative Commons licenses (copyleft and non-copyleft, free and non-free) quickly came to dominate the non-software public licensing space. The author of the Open Publication License came to recommend using Creative Commons licenses, and the EFF declared version 2.0 of the Open Audio License compatible with CC-BY-SA and suggested using the latter. Still, at least one copyleft license for “creative” works was released after Creative Commons launched: the Against DRM License (2006), though it did not achieve wide adoption. Finally a font-specific copyleft license (SIL Open Font License) was introduced in 2005 (again the GPL, with a “font exception”, was and is now also used for fonts).

Although CC-BY-SA was used for licensing “databases” almost from its launch, and still is, copyleft licenses specifically intended to be used for databases were proposed starting from the mid-2000s. The most prominent of those is the Open Database License (ODbL; 2009). As we can see public software licenses following the subjection of software to copyright, interest in public licenses for databases followed the EU database directive mandating “sui generis database rights”, which began to be implemented in member state law starting from 1998. How CC-BY-SA versions address databases is covered below.

Aside on share-alike non-free therefore non-copylefts

Many licenses intended for use with non-software works include the “share-alike” aspect of copyleft: if adaptations are distributed, to comply with the license they must be offered under the same terms. But some (excluding those discussed above) do not grant users the equivalent of all four software freedoms. Such licenses aren’t true copylefts, as they retain a prominent exclusive property right aspect for purposes other than enforcing all four freedoms for everyone. What these licenses create are “semicommons” or mixed private property/commons regimes, as opposed to the commons created by all free licenses, and protected by copyleft licenses. One reason non-free public licenses might be common outside software, but rare for software, is that software more obviously requires ongoing maintenance.2 Without control concentrated through copyright assignment or highly asymmetric contributor license agreements, multi-contributor maintenance quickly creates an “anticommons” – e.g., nobody has adequate rights to use commercially.

These non-free share-alike licenses often aggravate freedom and copyleft advocates as the licenses sound attractive, but typically are confusing, probably do not help and perhaps stymie the cause of freedom. There is an argument that non-free licenses offer conservative artists, publishers, and others the opportunity to take baby steps, and perhaps support better policy when they realize total control is not optimal, or to eventually migrate to free licenses. Unfortunately no rigorous analysis of any of these conjectures exists. The best that can be done might be to promote education about and effective use of free copyleft licenses (as this tutorial aims to do) such that conjectures about the impact of non-free licenses become about as interesting as the precise terms of proprietary software EULAs – demand freedom instead.

In any case, some of these non-free share-alike licenses (also watch out for aforementioned copyleft licenses with non-free and thus non-copyleft options) include: Open Content License (1998), Free Music Public License (2001), LinuxTag Yellow, Red, and Rainbow OpenMusic Licenses (2001), Open Source Music License (2002), Creative Commons NonCommercial-ShareAlike and Attribution-NonCommercial-ShareAlike Licenses (2002), Common Good Public License (2003), and Peer Production License (2013). CC-BY-NC-SA is by far the most widespread of these, and has been versioned with the other Creative Commons licenses, through the current version 4.0 (2013).

Creative Commons Attribution-ShareAlike

The remainder of this tutorial exclusively concerns the most widespread copyleft license intended for non-software works, Creative Commons Attribution-ShareAlike(CC-BY-SA). But, there are actually many CC-BY-SA licenses – 5 versions (6 if you count version 2.1, a bugfix for a few jurisdiction “porting” mistakes), ports to 60 jurisdictions – 96 distinct CC-BY-SA licenses in total. After describing CC-BY-SA and how it differs from the GPL at a high level, we’ll have an overview of the various CC-BY-SA licenses, then a section-by-section walkthrough of the most current and most clear of them – CC-BY-SA-4.0.

CC-BY-SA allows anyone to share and adapt licensed material, for any purpose, subject to providing credit and releasing adaptations under the same terms. The preceding sentence is a severe abridgement of the “human readable” license summary or “deed” provided by Creative Commons at the canonical URL for one of the CC-BY-SA licenses – the actual license or “legalcode” is a click away. But this abridgement, and the longer the summary provided by Creative Commons are accurate in that they convey CC-BY-SA is a free, copyleft license.

GPL and CC-BY-SA differences

FIXME this section ought refernence GPL portion of tutorial extensively

There are several differences between the GPL and CC-BY-SA that are particularly pertinent to their analysis as copyleft licenses.

The most obvious such difference is that CC-BY-SA does not require offering works in source form, that is their preferred form for making modifications. Thus CC-BY-SA makes a huge tradeoff relative to the GPL – CC-BY-SA dispenses with a whole class of compliance questions which are more ambiguous for some creative works than they are for most software – but in so doing it can be seen as a much weaker copyleft.

Copyleft is sometimes described as a “hack” or “judo move” on copyright, but the GPL makes two moves, though it can be hard to notice they are conceptually different moves, without the contrast provided by a license like CC-BY-SA, which only substantially makes one move. The first move is to neutralize copyright restrictions – adaptations, like the originally licensed work, will effectively not be private property (of course they are subject to copyright, but nobody can exercise that copyright to prevent others’ use). If copyright is a privatized regulatory system (it is), the first move is deregulatory. The second move is regulatory – the GPL requires offer of source form, a requirement that would not hold if copyright disappeared, absent a different regulatory regime which mandated source revelation (one can imagine such a regime on either “pragmatic” grounds, e.g., in the interest of consumer protection, or on the grounds of enforcing software freedom as a universal human right).

FIXME analysis of differences in copyleft scope (eg interplay of derivative works, modified copies, collections, aggregations, containers) would be good here but might be difficult to avoid novel research

CC-BY-SA makes the first move3 but adds the second in a limited fashion. It does not require offer of preferred form for modification nor any variation thereof (e.g., the FDL requires access to a “transparent copy”). CC-BY-SA does prohibit distribution with “effective technical measures” (i.e., digital restrictions management or DRM) if doing so limits the freedoms granted by the license. We can see that this is regulatory because absent copyright and any regime specifically limiting DRM, such distribution would be perfectly legal. Note the GPL does not prohibit distribution with DRM, although its source requirement makes DRM superfluous, and somewhat analogously, of course GPLv3 carefully regulates distribution of GPL’d software with locked-down devices – to put it simply, it requires keys rather than prohibiting locks. Occasionally a freedom advocate will question whether CC-BY-SA’s DRM prohibition makes CC-BY-SA a non-free license. Few if any questioners come down on the side of CC-BY-SA being non-free, perhaps for two reasons: first, overwhelming dislike of DRM, thus granting the possibility that CC-BY-SA’s approach could be appropriate for a license largely used for cultural works; second, the DRM prohibition in CC-BY-SA (and all CC licenses) seems to be mainly expressive – there are no known enforcements, despite the ubiquity of DRM in games, apps, and media which utilize assets under various CC licenses.

Another obvious difference between the GPL and CC-BY-SA is that the former is primarily intended to be used for software, and the latter for cultural works (and, with version 4.0, databases). Although those are the overwhelming majority of uses of each license, there are areas in which both are used, e.g., for hardware design and interactive cultural works, where there is not a dominant copyleft practice or the line between software and non-software is not absolutely clear.

This brings us to the third obvious difference, and provides a reason to mitigate it: the GPL and CC-BY-SA are not compatible, and have slightly different compatibility mechanisms. One cannot mix GPL and CC-BY-SA works in a way that creates a derivative work and comply with either of them. This could change – CC-BY-SA-4.0 introduced4 the possibility of Creative Commons declaring CC-BY-SA-4.0 one-way (as a donor) compatible with another copyleft license – the GPL is obvious candidate for such compatibility. Discussion is expected to begin in late 2014, with a decision sometime in 2015. If this one-way compatibility were to be enacted, one could create an adaptation of a CC-BY-SA work and release the adaptation under the GPL, but not vice-versa – which makes sense given that the GPL is the stronger copyleft.

The GPL has no externally declared compatibility with other licenses mechanism (and note no action from the FSF would be required for CC-BY-SA-4.0 to be made one-way compatible with the GPL). The GPL’s compatibility mechanism for later versions of itself differs from CC-BY-SA’s in two ways: the GPL’s is optional, and allows for use of the licensed work and adaptations under later versions; CC-BY-SA’s is non-optional, but only allows for adaptations under later versions.

Fourth, using slightly different language, the GPL and CC-BY-SA’s coverage of copyright and similar restrictions should be identical for all intents and purposes (GPL explicitly notes “semiconductor mask rights” and CC-BY-SA-4.0 “database rights” but neither excludes any copyright-like restrictions). But on patents, the licenses are rather different. CC-BY-SA-4.0 explicitly does not grant any patent license, while previous versions were silent. GPLv3 has an explicit patent license, while GPLv2’s patent license is implied (see [gpl-implied-patent-grant] and [GPLv3-drm] for details). This difference ought give serious pause to anyone considering use of CC-BY-SA for works potentially subject to patents, especially any potential licensee if CC-BY-SA licensor holds such patents. Fortunately Creative Commons has always strongly advised against using any of its licenses for software, and that advice is usually heeded; but in the space of hardware designs Creative Commons has been silent, and unfortunately from a copyleft (i.e., use mechanisms at disposal to enforce user freedom) perspective, CC-BY-SA is commonly used (all the more reason to enable one-way compatibility, allowing such projects to migrate to the stronger copyleft).

The final obvious difference pertinent to copyleft policy between the GPL and CC-BY-SA is purpose. The GPL’s preamble makes it clear its goal is to guarantee software freedom for all users, and even without the preamble, it is clear that this is the Free Software Foundation’s driving goal. CC-BY-SA (and other CC licenses) state no purpose, and (depending on version) are preceded with a disclaimer and neutral “considerations for” licensors and licensees to think about (the CC0 public domain dedication is somewhat of an exception; it does have a statement of purpose, but even that has more of a feel of expressing yes-I-really-mean-to-do-this than a social mission). Creative Commons has always included elements of merely offering copyright holders additional choices and of purposefully creating a commons. While CC-BY-SA (and initially CC-SA) were just among the 11 non-mutually exclusive combinations of “BY”, “NC”, “ND”, and “SA”, freedom advocates quickly adopted CC-BY-SA as “the” copyleft for non-software works (surpassing previously existing non-software copylefts mentioned above). Creative Commons has at times recognized the special role of CC-BY-SA among its licenses, e.g., in a statement of intent regarding the license made in order to assure Wikimedians considering changing their default license from the FDL to CC-BY-SA that the latter, including its steward, was acceptably aligned with the Wikimedia movement (itself probably more directly aligned with software freedom than any other major non-software commons).

FIXME possibly explain why purpose might be relevant, eg copyleft instrument as totemic expression, norm-setting, idea-spreading

FIXME possibly mention that CC-BY-SA license text is free (CC0)

There are numerous other differences between the GPL and CC-BY-SA that are not particularly interesting for copyleft policy, such as the exact form of attribution and notice, and how license translations are handled. Many of these have changed over the course of CC-BY-SA versioning.

CC-BY-SA versions

FIXME section ought explain jurisdiction ports

This section gives a brief overview of changes across the main versions (1.0, 2.0, 2.5, 3.0, and 4.0) of CC-BY-SA, again focused on changes pertinent to copyleft policy. Creative Commons maintains a page detailing all significant changes across versions of all of its CC-BY* licenses, in many cases linking to detailed discussion of individual changes.

As of late 2014, versions 2.0 (the one called “Generic”; there are also 18 jurisdiction ports) and 3.0 (called “Unported”; there are also 39 ports) are by far the most widely used. 2.0 solely because it is the only version that the proprietary web image publishing service Flickr has ever supported. It hosts 27 million CC-BY-SA-2.0 photos 5 and remains the go-to general source for free images (though it may eventually be supplanted by Wikimedia Commons, some new proprietary service, or a federation of free image sharing sites, perhaps powered by GNU MediaGlobin). 3.0 both because it was the current version far longer (2007-2013) than any other and because it has been adopted as the default license for most Wikimedia projects.

However apart from the brief notes on each version, we will focus on 4.0 for a section-by-section walkthrough in the next section, as 4.0 is improved in several ways, including understandability, and should eventually become the most widespread version, both because 4.0 is intended to remain the current version for the indefinite and long future, and it would be reasonable to predict that Wikimedia projects will make CC-BY-SA-4.0 their default license in 2015 or 2016.

FIXME subsections might not be the right strcuture or formatting here

1.0 (2002-12-16)

CC-BY-SA-1.0 set the expectation for future versions. But the most notable copyleft policy feature (apart from the high level differences with GPLv2, such as not requiring source) was no measure for compatibility with future versions (nor with the CC-SA-1.0, also a copyleft license, nor with pre-existing copyleft licenses such as GPL, FDL, FAL, and others, nor with CC jurisdiction ports, of which there were 3 for 1.0).

2.0 (2004-05-25)

CC-BY-SA-2.0 made itself compatible with future versions and CC jurisdiction ports of the same version. Creative Commons did not version CC-SA, leaving CC-BY-SA-2.0 as “the” CC copyleft license. CC-BY-SA-2.0 also adds the only clarification of what constitutes a derivative work, making “synchronization of the Work in timed-relation with a moving image” subject to copyleft.

2.5 (2005-06-09)

CC-BY-SA-2.5 makes only one change, to allow licensor to designate another party to receive attribution. This does not seem interesting for copyleft policy, but the context of the change is: it was promoted by the desire to make attribution of mass collaborations easy (and on the other end of the spectrum, to make it possible to clearly require giving attribution to a publisher, e.g., of a journal). There was a brief experiment in branding CC-BY-SA-2.5 as the “CC-wiki” license. This was an early step toward Wikimedia adopting CC-BY-SA-3.0, four years later.

3.0 (2007-02-23)

CC-BY-SA-3.0 introduced a mechanism for externally declaring bilateral compatibility with other licenses. This mechanism to date has not been used for CC-BY-SA-3.0, in part because another way was found for Wikimedia projects to change their default license from FDL to CC-BY-SA: the Free Software Foundation released FDL 1.3, which gave a time-bound permission for mass collaboration sites to migrate to CC-BY-SA. While not particularly pertinent to copyleft policy, it’s worth noting for anyone wishing to study old versions in depth that 3.0 is the first version to substantially alter the text of most of the license, motivated largely by making the text use less U.S.-centric legal language. The 3.0 text is also considerably longer than previous versions.

4.0 (2013-11-25)

CC-BY-SA-4.0 added to 3.0’s external compatibility declaration mechanism by allowing one-way compatibility. After release of CC-BY-SA-4.0 bilateral compatibility was reached with FAL-1.3. As previously mentioned, one-way compatibility with GPLv3 will soon be discussed.

4.0 also made a subtle change in that an adaptation may be considered to be licensed solely under the adapter’s license (currently CC-BY-SA-4.0 or FAL-1.3, in the future potentially GPLv3 or or a hypothetical CC-BY-SA-5.0). In previous versions licenses were deemed to “stack” – if a work under CC-BY-SA-2.0 were adapted and released under CC-BY-SA-3.0, users of the adaptation would need to comply with both licenses. In practice this is an academic distinction, as compliance with any compatible license would tend to mean compliance with the original license. But for a licensee using a large number of works that wished to be extremely rigorous, this would be a large burden, for it would mean understanding every license (including those of jurisdiction ports not in English) in detail.

The new version is also an even more complete rewrite of 3.0 than 3.0 was of previous versions, completing the “internationalization” of the license, and actually decreasing in length and increasing in readability.

Additionally, 4.0 consistently treats database (licensing them like other copyright-like rights) and moral rights (waiving them to the extent necessary to exercise granted freedoms) – in previous versions some jurisdiction ports treated these differently – and tentatively eliminates the need for jurisdiction ports. Official linguistic translations are underway (Finnish is the first completed) and no legal ports are planned for.

4.0 is the first version to explicitly exclude a patent (and less problematically, trademark) license. It also adds two features akin to those found in GPLv3: waiver of any right licensor may have to enforce anti-circumvention if DRM is applied to the work, and reinstatement of rights after termination if non-compliance corrected within 30 days.

Finally, 4.0 streamlines the attribution requirement, possibly of some advantage to massive long-term collaborations which historically have found copyleft licenses a good fit.

The 4.0 versioning process was much more extensively researched, public, and documented than previous CC-BY-SA versionings; see https://wiki.creativecommons.org/4.0 for the record and https://wiki.creativecommons.org/Version_4 for a summary of final decisions.

CC-BY-SA-4.0 International section-by-section

FIXME arguably this section ought be the substance of the tutorial, but is very thin and weak now

FIXME formatted/section-referenced copy of license should be added to license-texts.tex and referenced throughout

The best course of action at this juncture would be to read http://creativecommons.org/licenses/by-sa/4.0/legalcode – the entire text is fairly easy to read, and should be quickly understood if one has the benefit of study of other public licenses and of copyleft policy.

The following walk-through will simply call out portions of each section one may wish to study especially closely due to their pertinence to copyleft policy issues mentioned above.

FIXME subsections might not be the right structure or formatting here

1 – Definitions

The first three definitions – “Adapted Material”, “Adapter’s License”, and “BY-SA Compatible License” are crucial to understanding copyleft scope and compatibility.

2 – Scope

The license grant is what makes all four freedoms available to licensees. This section is also where waiver of DRM anti-circumvention is to be found, also patent and trademark exclusions.

3 – License Conditions

This section contains the details of the attribution and share-alike requirements; the latter read closely with aforementioned definitions describe the copyleft aspect of CC-BY-SA-4.0.

4 – Sui Generis Database Rights

This section describes how the previous grant and condition sections apply in the case of a database subject to sui generis database rights. This is an opportunity to go down a rabbit-hole of trying to understand sui generis database rights. Generally, this is a pointless exercise. You can comply with the license in the same way you would if the work were subject only to copyright – and determining whether a database is subject to copyright and/or sui generis database rights is another pit of futility. You can license databases under CC-BY-SA-4.0 and use databases subject to the same license as if they were any other sort of work.

5 – Disclaimer of Warranties and Limitation of Liability

Unsurprisingly, this section does its best to serve as an “absolute disclaimer and waiver of all liability.”

6 – Term and Termination

This section is similar to GPLv3, but without special provision for cases in which the licensor wishes to terminate even cured violations.

7 – Other Terms and Conditions

Though it uses different language, like the GPL, CC-BY-SA-4.0 does not allow additional restrictions not contained in the license. Unlike the GPL, CC-BY-SA-4.0 does not have an explicit additional permissions framework, although effectively a licensor can offer any other terms if they are the sole copyright holder (the license is non-exclusive), including the sorts of permissions that would be structured as additional permissions with the GPL. Creative Commons has sometimes called offering of separate terms (whether additional permissions or “proprietary relicensing”) the confusing name “CC+”; however where this is encountered at all it is usually in conjunction with one of the non-free CC licenses. Perhaps CC-BY-SA is not a strong enough copyleft to sometimes require additional permissions, or be used to gain commercially valuable asymmetric rights, in contrast with the GPL.

8 – Interpretation

Nothing surprising here. Note that CC-BY-SA does not “reduce, limit, restrict, or impose conditions on any use of the Licensed Material that could lawfully be made without permission under this Public License.” This is a point that Creative Commons has always been eager to make about all of its licenses. GPLv3 also “acknowledges your rights of fair use or other equivalent”. This may be a wise strategy, but should not be viewed as mandatory for any copyleft license – indeed, the ODbL attempts (somewhat self-contradictorily; it also acknowledges fair use or other rights to use) make its conditions apply even for works potentially subject to neither copyright nor sui generis database rights.

Enforcement

There are only a small number of court cases involving any Creative Commons license. Creative Commons lists these and some related cases at https://wiki.creativecommons.org/Case_Law.

Only two of those cases concern enforcing the terms of a CC-BY-SA license (Gerlach v. DVU in Germany, and No. 71036 N. v. Newspaper in a private Rabbinical tribunal) each hinged on attribution, not share-alike.

Further research could uncover out of compliance uses being brought into compliance without lawsuit, however no such research, nor any hub for conducting such compliance work, is known. Editors of Wikimedia Commons document some external uses of Commons-hosted media, including whether user are compliant with the relevant license for the media (often CC-BY-SA), resulting in a category listing non-compliant uses (which seem to almost exclusively concern attribution).

Compliance Resources

FIXME this section is just a stub; ideally there would also be an additional section or chapter on CC-BY-SA compliance

Creative Commons has a page on ShareAlike interpretation as well as an extensive Frequently Asked Questions for licensees which addresses compliance with the attribution condition.

English Wikipedia’s and Wikimedia Commons’ pages on using material outside of Wikimedia projects provide valuable information, as the majority of material on those sites is CC-BY-SA licensed, and their practices are high-profile.

FIXME there is no section on business use of CC-BY-SA; there probably ought to be as there is one for GPL, though there’d be much less to put.

“Open policy” is the most promising copyright reform

Thursday, June 26th, 2014

Only a few days (June 30 deadline) for applications to the first Institute for Open Leadership. I don’t know anything about it other than what’s at the link, but from what I gather it involves a week-long workshop in the San Francisco area on open policy and ongoing participation in an online community of people promoting open policies in their professional capacities, and is managed by an expert in the field, Timothy Vollmer. Read an interview with Vollmer (wayback link to spare you the annoying list-gathering clickthrough at the original site, not least because its newsletter is an offender).

The institute and its parent Open Policy Network define:

Open Policy = publicly funded resources are openly licensed resources.

(Openly licensed includes public domain.)

Now, why open policy is the most promising knowledge regulation reform (I wrote “copyright” in the title, but the concept is applicable to mitigating other IP regimes, e.g., patent, and pro-commons regulation not based on mitigating IP):

  • Most proposed reforms (formalities can serve as an example for each mention following) merely reduce inefficiencies and embarrassments of freedom infringing regimes in ways that don’t favor commons-based production, as is necessary for sustainable good policy. Even if not usually conceptualized as commons-favoring, open policy is strongly biased in that direction as its mechanism is mandate of the terms used for commons-based production: open licenses. Most proposed reforms could be reshaped to be commons-favoring and thinking of how to do so a useful exercise (watch this space) but making such reshaping gain traction, as a matter of discourse let alone implementation, is a very long-term project.
  • The concept of open policy is scalable. There’s no reason as it gains credence to push for its expansion to everything receiving public or publicly interested support, including high and very low culture subsidy. At the extreme, the only way to avoid being subject to some open policy mandate would be to create restricted works in an IPer colony, isolated from the rest of humanity.
  • In order to make open policy gain much more credence than it has now, its advocates will be forced to make increasingly sophisticated public policy arguments to support claims that open policy “maximizes public investment” or to shift the object of maximization to freedom and equality. Most proposed reforms, because they would only reduce inefficiency and embarrassment, do not force much sophistication, leaving knowledge regulation discourse rotting in a trough where economists abandoned it over a century ago.
  • Open policy implementation has the potential to destroy the rents of freedom infringing industries. For sustainable good policy it is necessary to both build up the commons as an interest group and diminish interest groups that depend or think they depend on infringing freedom. It is possible for open policy to be gamed (e.g., hybrid journal double dipping). As troubling as that is, it seems to me that open policy flips which side is left desperately clawing for loopholes contrary to the rationale of policy. Most reform proposals at least implicitly take it as a given that public interest is the desperate side.
  • Open policy does not require any fundamental changes to national law or international treaties, meaning it is feasible, now. Hopefully a few reformists have generally grasped the no-brainer concept that a benefit obtained today is more valuable than one obtained in the future, e.g., in 95 years. It also doesn’t mean that open policy is merely a “patch” in contrast the “fixes” of most proposed reforms — which aren’t fixes anyway, but rather mitigations of the worst inefficiencies and embarrassments of freedom infringing regimes. If open policy is a patch, it is a one that helps the body of knowledge regulation to heal, by the mechanisms above (promoting commons production and discourse, diminishing freedom infringing interests).

In my tradition of critical cheering, consider the following Open Policy Network statement:

We have observed that current open policy efforts are decentralized, uncoordinated and insular; there is poor and/or sporadic information sharing.

As illustrated by the lack of the Open Source Definition or any software-centric organizations on Open Policy Network lists of its guiding principles and member organizations. Fortunately software is mentioned several times, for example:

If we are going to unleash the power of hundreds of billions of dollars of publicly funded education, research, data, and software, we need broad adoption of open policies.

Hopefully if the Open Policy Network is to become an important venue for moving open policy forward, people who understand software will get involved (by the way, one of the ways “publicly funded” is scalable is that it properly includes procurement, not only wholly funded new resources), e.g., FSFE and April. I know talking about software is scary — because it is powerful and unavoidable. But this makes it a necessity to include in any serious project to reform the knowledge economy and policy. Before long, everything that is not software or suffused with software will be obsolete.

API commons

Thursday, May 29th, 2014

Notes for panel The API Copyright Emergency: What’s Next? today at API Con SF. The “emergency” is the recent decision in Oracle v. Google, which I don’t discuss directly below, though I did riff on the ongoing case last year.

I begin with and come back to a few times Creative Commons licenses as I was on the panel as a “senior fellow” for that organization, but apart from such emphasis and framing, this is more or less what I think. I got about 80% of the below in on the panel, but hopefully still worth reading even for attendees.

A few follow-up thoughts after the notes.

Creative Commons licenses, like other public licenses, grant permissions around copyright, but as CC’s statement on copyright reform concludes, licenses “are not a substitute for users’ rights, and CC supports ongoing efforts to reform copyright law to strengthen users’ rights and expand the public domain.” In the context of APIs, default policy should be that independent implementation of an API never require permission from the API’s designer, previous implementer, or other rightsholder.

Without such a default policy of permission-free innovation, interoperability and competition will suffer, and the API community invites late and messy regulation at other levels intending to protect consumers from resulting lock-in.

Practically, there are things API developers, service providers, and API consumers can do and demand of each other, both to protect the community from a bad turn in default policy, and to go further in creating a commons. But using tools such as those CC provides, and choosing the right tools, requires looking at what an API consists of, including:

  1. API specification
  2. API documentation
  3. API implementations, server
  4. API implementations, client
  5. Material (often “data”) made available via API
  6. API metadata (e.g, as part of API directory)

(depending on construction, these could all be generated from an annotated implementation, or could each be separate works)

and what restrictions can be pertinent:

  1. Copyright
  2. Patent

(many other issues can arise from providing an API as a service, e.g., privacy, though those are usually not in the range of public licenses and are orthogonal to API “IP”, so I’ll ignore them here)

1-4 are clearly works subject to copyright, while 5 and 6 may or may not be (e.g., hopefully not if purely factual data). Typically only 3 and 4 might be restricted by patents.

Standards bodies typically do their work primarily around 1. Relatively open ones, like the W3C, obtain agreement from all contributors to the standard to permit royalty-free implementation of the standard by anyone, typically including a patent license and permission to prepare and perform derivative works (i.e., copyright, to extent such permission is necessary). One option you have is to put your API through an existing standards organization. This may be too heavyweight, or may be appropriate yet if your API is really a multi-stakeholder thing with multiple peer implementations; the W3C now has a lightweight community group venue which might be appropriate. The Open Web Foundation’s agreements allow you to take this approach for your API without involvement of an existing standards body​. Lawrence Rosen has/will talk about this.

Another approach is to release your API specification (and necessarily 2-4 to the extent they comprise one work, ideally even if they are separate) under a public copyright license, such as one of the CC licenses, the CC0 public domain dedication, or an open source software license. Currently the most obvious choice is the Apache License 2.0, which grants copyright permission as well as including a patent peace clause. One or more of the CC licenses are sometimes suggested, perhaps because specification and documentation are often one work, and the latter seems like a “creative” work. But keep in mind that CC does not recommend using its licenses for software, and instead recommends using an open source software licenses (such as Apache): no CC license includes explicit patent permission, and depending on the specific CC license chosen, it may not be compatible with software licenses, contrary to goal of granting clear permission for independent API implementation, even in the face of a bad policy turn.

One way to go beyond mitigating “API copyrightability” is to publish open source implementations, preferably production, though reference implementations are better than nothing. These implementations would be covered by whatever copyright and patent permissions are granted by the license they are released under — again Apache 2.0 is a good choice, and for software implementation CC licenses should not be used; other software licenses such as [A]GPL might be pertinent depending on business and social goals.

Another way to create a “thick” API commons is to address material made available via APIs, and metadata about APIs. There, CC tools are likely pertinent, e.g., use CC0 for data and metadata to ensure that “facts are free”, as they ought be in spite of other bad policy turns.

To get even thicker, consider the architecture, for lack of a better term, around API development, services, and material accessed and updated via APIs. Just some keywords: Linked Open Data, P2P, federation, Lots of Copies Keep Stuff Safe, collaborative curation.

The other panelists were Pamela Samuelson, Lawrence Rosen, and Annette Hurst, moderated by David Berlind.

I’m fairly familiar with Samuelson’s and Rosen’s work and don’t have comments on what they said on the panel. If you want to read more, I recommend among Samuelson’s papers The Strange Odyssey of Software Interfaces and Intellectual Property Law which shows that the “API copyright emergency” of the panel title is recurrent and intertwined with patent, providing several decades of the pertinent history up to 2008. Contrary to my expectation in the notes above, Rosen didn’t get a chance to talk about the Open Web Foundation agreements, but you can read his 2010 article Implementing Open Standards in Open Source which covers OWF.

Hurst is a lawyer for Orrick representing Oracle in the Oracle v. Google case, so understandably advocated for API copyright, but in the process made several deeply flawed assertions could have consumed the entire duration of the panel, but Berlind did a good job of keeping the conversation moving forward. Still, I want to mention two high level ones here, my paraphrases and responses:

Without software copyright the software economy would go away. This is refuted by software development not for the purposes of selling licenses (which is the vast majority of it), especially free/open source software development, and services (e.g., API provision, the source of which is often never published, though it ought be, see “going beyond” recommendations above). Yes the software economy would change, with less winner-take-all monopoly and less employment for Intellectual Parasite lawyers. But the software economy would be huge and very competitive. Software is eating the world, remember? One way to make it help rather than pejoratively eat the world is to eject the parasites along for the ride.

Open source can’t work without software copyright. This is refuted by 1) software source sharing before software copyright; 2) preponderance of permissively licensed open source software, in which the terms do not allow suing downstream developers who do not share back; 3) the difficulty of enforcing copyleft licenses which do allow for suing downstream developers who do not share back; 4) the possibility of non-copyright regulation to force sharing of source (indeed I see the charitable understanding of copyleft as prototyping such regulation; for perspective on the Oracle v. Google case from someone with a more purely charitable understanding of copyleft, see Bradley Kuhn); and 5) demand and supply mechanisms for mandating sharing of source (e.g., procurement policies, distribution policies such as Debian’s).

These came up because Hurst seemed to really want the audience to conflate software copyright in general (not at issue in the case, settled in a bad place since the early 1980s) and API copyright specifically. Regarding the latter, another point which could have been made is the extent to which free/open source software has been built around providing alternatives to proprietary software, often API-compatible. If API copyright could prevent compatible implementation without permission of any sort, open source, competition, and innovation would all be severely hampered.

There is a recent site called API Commons, which seems to be an API directory (Programmable Web, which ran the conference, also has one). My general suggestion to both would be to implement and facilitate putting all elements of APIs listed above in my notes in the commons. For example, they could clarify that API metadata they collect is in the public domain, publish it as Linked Open Data, and encourage API developers and providers they catalog to freely license specifications, documentation, implementations, and data, and note such in the directories.

In order to get a flavor for the conference, I listened to yesterday morning’s keynotes, both of which made valiant attempts to connect big picture themes to day to day API development and provision. Allow me to try to make connections back to “API commons”.

Sarah Austin, representing the San Francisco YMCA, pointed out that the conference is near the Tenderloin neighborhood, the poorest in central San Francisco. Austin asked if kids from the Tenderloin would be able to find jobs in the “API economy” or would they be priced out of the area (many tech companies have moved nearby in the last years, Twitter perhaps the best known).

Keith Axline claimed The Universe Is Programmable. We Need an API for Everything, or to some extent, that learning about the universe and how to manipulate it is like programming. Axline’s talk seemed fairly philosophical, but could be made concrete with reference to the Internet of Things, programmable matter, robots, nanobots, software eating the world … much about the world will indeed soon be software (programmable) or obsolete.

Axline’s conclusion was in effect largely about knowledge policy, including mourning energy wasted on IP, and observing that we should figure out public support for science or risk a programmable world dominated by IP. That might be part of it, but keeps the focus on funding, which is just where IP advocates want it — IP is an off-the-balance-sheets, “free” taking. A more direct approach is needed — get the rules of knowledge policy right, put freedom and equality as its top goals, reject freedom infringing regimes, promote commons (but mandating all these as a condition of public and publicly interested funding is a reasonable starting place) — given these objectives and constraints, then argue about market, government, or other failure and funding.

Knowledge policy can’t directly address the Austin’s concerns in the Tenderloin, but it does indirectly affect them, and over the long term tremendously affect them, in the Tenderloin and many other places. As the world accelerates its transition from an industrial to a knowledge dominated economy, will that economy be dominated by monopoly and inequality or freedom and equality? Will the former concentrations continue to abet instances of what Jane Jacobs called “catastrophic money” rushing into ill-prepared neighborhoods, or will the latter tendencies spread the knowledge, wealth, and opportunity?

Without Intellectual Property Day [edit]

Saturday, April 26th, 2014
Without Intellectual Property Day by Parker Higgins of the EFF is quite good, and released under CC-BY. Clearly deserving of adaptation. Mine below, followed by a diff.

April 26 is the day marked each year since 2000 by the World Intellectual Property Organization (WIPO) as “World Intellectual Property Day”, in which WIPO tries to associate its worldwide pushes for more enclosure with creativity.

Celebrating creativity is a good thing, but when you’re a hammer, everything looks like a nail. For the World Intellectual Property Organization, it may seem like creativity and “intellectual property” are inextricably linked. That’s not the case. In the spirit of adding to the conversation, let’s honor all the creativity and industry that is happening without a dependence on a system intellectual property.

There’s an important reason to encourage and promote creativity outside the bounds of increasingly restrictive laws: to the extent such creativity succeeds, it helps us re-imagine the range of desirable policy and reduces the resources available to enclosure industries to lobby for protectionism — in sum shifting what is politically possible. It’s incumbent on all of us who want to encourage creativity to continue to explore and utilize structures that reward creators without also restricting speech.

Comedy, Fashion, Cooking, Magic, and More

In the areas in which intellectual freedom is not typically infringed, there is tremendous innovation and consistent creativity outside of the intellectual property system. Chefs create new dishes, designers imagine new styles, comedians write new jokes, all without a legal enforcement mechanism to restrict others from learning and building on them.

There may be informal systems that discourage copying—the comedy community, to take one example, will call out people who are deemed to be ripping off material—but for the most part these work without expensive litigation, threats of ruinous fines, and the creation of systems of surveillance and censorship.

Contributing to a Creative Commons

The free software movement pioneered the practice of creating digital media that can legally and freely be shared and expanded, building a commons. The digital commons idea is being pushed in more areas than ever before, including culture, education, government, hardware design, and research. There are some projects we’re all familiar with — Wikipedia is perhaps the most prominent, creating an expansive and continuously updated encyclopedia that is freely accessible under permissive terms to the entire world.

Focusing on this year’s World IP Day theme of movies, there have been some impressive contributions the commons over the years. Nina Paley’s feature animation Sita Sings The Blues, which she released into the public domain, has spread widely, inspired more work, and earned her money. The short films from the Blender Foundation have demonstrated cutting-edge computer graphics made with free software and, though they’ve sometimes been on the receiving end of bogus copyright takedowns, have been watched many millions of times.

Kickstarting and Threshold Pledges

Finally, crowdfunding platforms like Kickstarter and Indie-Go-Go have made a major splash in the last few years as another fundraising model that can complement, or even replace, copyright exclusivity. These platforms build on theoretical framework laid out by scholars like John Kelsey and Bruce Schneier in the influential “Street Performer Protocol” paper, which set out to devise an alternative funding system for public domain works. But most crowdfunded works are not in the commons, indicating an need for better coordination of street patrons.

Looking at movies in particular: Kickstarter alone has enabled hundreds of millions of dollars of pledges, hundreds of theatrical releases, and seven Oscar-nominated films (including Inocente, winner of the Best Documentary Short category). Blender Foundation is currently crowdfunding its first feature length film, Gooseberry.

***

The conceit of copyright and other “intellectual property” systems is that they can be calibrated to promote the progress of science and the useful arts. But the reality of these systems is corruption and rent seeking, not calibration. The cost is not just less creativity and innovation, but less freedom and equality.

It’s clear from real world examples that other systems can achieve the goal of promoting creativity, progress, and innovation. We must continue to push for both practice and policy that favors these systems, ultimately rendering “intellectual property” a baffling anachronism. In a good future, a policy-oriented celebration of creativity and innovaion would be called World Intellectual Freedom Day.

wdiff -n eff-wipd.html eff-wipd-edit.html |colordiff |aha -w > eff-wipd-diff.html
[-<p>Today, April 26,-]{+<p>April 26+} is the day marked each year since 2000 [-as "Intellectual Property Day"-] by the <a href="https://www.eff.org/issues/wipo">World Intellectual Property Organization [-(WIPO)</a>. There are many areas where EFF has not historically agreed with WIPO,-] {+(WIPO)</a> as "World Intellectual Property Day", in+} which [-has traditionally pushed-] {+WIPO tries to associate its <a href="https://www.eff.org/deeplinks/2013/03/ustr-secret-copyright-agreements-worldwide">worldwide pushes+} for more [-restrictive agreements and served as a venue for <a href="https://www.eff.org/deeplinks/2013/03/ustr-secret-copyright-agreements-worldwide">domestic policy laundering</a>, but we agree that celebrating-] {+enclosure</a> with creativity.</p>+}
{+<p>Celebrating+} creativity is a good [-thing.</p>-]
[-<p>As the saying goes, though:-] {+thing, but+} when you're a hammer, everything looks like a nail. For the World Intellectual Property Organization, it may seem like creativity and <a href="https://www.eff.org/issues/intellectual-property/the-term">"intellectual property"</a> are inextricably linked. That's not the case. In the spirit of adding to the conversation, [-we'd like to-] {+let's+} honor all the creativity and industry that is happening <i>without</i> a dependence on a system intellectual property.</p>
<p>There's an important reason to encourage {+and promote+} creativity outside the bounds of increasingly restrictive [-laws, too. As Ninth Circuit Chief Justice Alex Kozinski eloquently explained in <a href="http://notabug.com/kozinski/whitedissent">a powerful dissent</a> some 20 years ago, pushing only for more IP restrictions tips a delicate balance against creativity:</p>-]
[-<blockquote><p>Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on-] {+laws: to+} the [-works-] {+extent such creativity succeeds, it helps us re-imagine the range+} of [-those who came before. Overprotection stifles the very creative forces it's supposed-] {+desirable policy <i>and</i> reduces the resources available+} to [-nurture.</p></blockquote>-]
[-<p>It's-] {+enclosure industries to lobby for protectionism -- in sum shifting what is politically possible. It's+} incumbent on all of us who want to encourage creativity to continue to explore {+and utilize+} structures that reward creators without also restricting speech.</p>
<h3>Comedy, Fashion, Cooking, Magic, and More</h3>
<p>In the areas [-known as copyright's "negative spaces,"-] {+in which intellectual freedom is not typically infringed,+} there is tremendous innovation and consistent creativity outside of the intellectual property system. Chefs create new dishes, designers imagine new styles, comedians write new jokes, all without a legal enforcement mechanism to restrict others from learning and building on them.</p>
<p>There may be informal systems that discourage copying—the comedy community, to take one example, <a href="http://www.slate.com/articles/arts/culturebox/features/2014/the_humor_code/joke_theft_can_a_comedian_sue_if_someone_steals_his_material.html">will call out people</a> who are deemed to be ripping off material—but for the most part these work without expensive litigation, threats of ruinous fines, and the creation of systems [-that can be abused to silence lawful non-infringing speech.</p>-] {+of surveillance and censorship.</p>+}
<h3>Contributing to a Creative Commons</h3>
<p>The free software movement [-may have popularized-] {+pioneered+} the [-idea-] {+practice+} of creating digital media that can legally and freely be shared and expanded, [-but the free culture movement has pushed the-] {+building a commons. The digital commons+} idea [-further-] {+is being pushed in more areas+} than ever [-before.-] {+before, including culture, education, government, hardware design, and research.+} There are some projects we're all familiar [-with—Wikipedia-] {+with -- Wikipedia+} is perhaps the most prominent, creating an expansive and continuously updated encyclopedia that is freely accessible under permissive terms to the entire world.</p>
<p>Focusing on this year's World IP Day theme of movies, there have been some impressive contributions the commons over the years. Nina Paley's feature animation <i><a href="http://www.sitasingstheblues.com/">Sita Sings The Blues</a></i>, which she released into the public domain, has spread widely, inspired more work, and earned her money. The <a href="http://www.techdirt.com/articles/20101002/20174711259/open-source-animated-movie-shows-what-can-be-done-today.shtml">short films from the Blender Foundation</a> have demonstrated cutting-edge computer graphics made with free software and, though they've sometimes been on <a href="http://www.techdirt.com/articles/20140406/07212626819/sony-youtube-take-down-sintel-blenders-open-source-creative-commons-crowdfunded-masterpiece.shtml">the receiving end of bogus copyright takedowns</a>, have been watched many millions of times.</p>
<h3>Kickstarting and Threshold Pledges</h3>
<p>Finally, crowdfunding platforms like Kickstarter and Indie-Go-Go have made a major splash in the last few years as another fundraising model that can complement, or even replace, [-traditional-] copyright exclusivity. These platforms build on theoretical framework laid out by scholars like John Kelsey and [-EFF board member-] Bruce Schneier in <a href="https://www.schneier.com/paper-street-performer.html">the influential "Street Performer Protocol" paper</a>, which set out to devise an alternative funding system for public [-works.</p>-] {+domain works. But most crowdfunded works are not in the commons, indicating an need for better <a href="http://gondwanaland.com/mlog/2013/08/10/street-patrons-missing-coordination-protocol/">coordination of street patrons</a>.</p>+}
<p>Looking at movies in particular: Kickstarter alone has <a href="https://www.kickstarter.com/blog/a-big-day-for-film">enabled hundreds of millions of dollars of pledges</a>, hundreds of theatrical releases, and seven Oscar-nominated films (including <i>Inocente</i>, winner of the Best Documentary Short category). [-Along with other-] {+Blender Foundation is currently+} crowdfunding [-sites, it has allowed the development of niche projects that might never have been possible under the traditional copyright system.&nbsp;</p>-] {+its first feature length film, <em><a href="http://gooseberry.blender.org/">Gooseberry</a></em>.</p>+}
<h3>***</h3>
[-<p>As the Constitution tells us,-]
{+<p>The conceit of+} copyright and other "intellectual property" systems [-can, when-] {+is that they can be+} calibrated [-correctly,-] {+to+} promote the progress of science and the useful arts. [-We continue to work pushing for a balanced law that would better achieve that end.</p>-]
[-<p>But it's also-] {+But the reality of these systems is corruption and rent seeking, not calibration. The cost is not just less creativity and innovation, but less freedom and <a href="http://gondwanaland.com/mlog/2014/01/30/tech-wealth-ip/">equality</a>.</p>+}
{+<p>It's+} clear from [-these-] real world examples that other systems can achieve [-that-] {+the+} goal [-as well. Promoting-] {+of promoting+} creativity, progress, and [-innovation is an incredibly valuable mission—it's good to know that it doesn't have-] {+innovation. We must continue+} to [-come through systems-] {+push for both practice and <a href="http://gondwanaland.com/mlog/2014/02/09/freedoms-commons/#regulators">policy+} that [-can-] {+favors these systems</a>, ultimately rendering "intellectual property" a baffling anachronism. In a good future, a policy-oriented celebration of creativity and innovaion would+} be [-abused to stifle valuable speech.</p>-] {+called World Intellectual Freedom Day.</p>+}

Patent reform, parts deficient in commons

Friday, April 18th, 2014

A Five Part Plan for Patent Reform (pdf) by Charles Duan, Director of Patent Reform at Public Knowledge, is simultaneously good and deficient:

  1. Notes theoretical and observed problems with monopoly incentive story underlying patents, mixed empirical results, regulatory cause of strong positive results in one field (pharma), layers of abuse surrounding core in implementation, the existence of many non-monopoly incentives for innovation, conflicts between these and patents … and yet fundamentally accepts the noble origin role of monopoly incentives in protecting apple pie and correlation with some inventions — nevermind causality or counterfactual. Compare text “certainly many inventions through history, such as the light bulb, the airplane, and the photocopier, were invented by small inventors and protected by patents” and its citation (footnote 7, The Myth of the Sole Inventor)!
  2. Discusses commons (Open Innovation Communities) as evidence, and substantially better than typical writing doing so, as at least a concept of pro-commons reform is included: “One task for patent reform, then, is to consider adjustments to the patent system that better accommodate these alternate incentives for innovation. The goal of such adjustments is to better encourage these inventors incentivized by factors other than patents, and to ensure that patents do not stand in the way of those inventors.” As usual, commons regimes carved out of property defaults are mentioned (specifically GPL and DPL), but not as prototypes for default policy. Also, “it is important for these decisionmakers to reach out to inventing communities, even those that do not file for patents, and it is important for those communities to reach out to the Patent Office and other decisionmakers.” I think this also holds for “IP scholars” (which of course ought re-imagine themselves as commons scholars) and OIC participants/commoners — let’s talk about what concrete reforms would favor actually existing commons, and put those on the scholarly and policy agendas. A recent idea directly concerning patents that ought start down that long road, but many pertinent reforms may be indirect, favoring commons in other ways so as to change the knowledge economy which eventually determines what interests dominate.
  3. Innovation is assumed the top goal of policy, tempered only by conflict among incentives to innovate, and need to rein in unscrupulous behavior. No mention of freedom and almost none of equality (Joseph Stiglitz is quoted: “The alternative of awarding prizes would be more efficient and more equitable”), let alone as goals which trump innovation.

These three good/deficient pairs are endemic in intellectual property-focused discourse, e.g., see my recent reviews of IP in a World Without Scarcity and Copyright and Inequality — one of the reasons the latter is so great is that places equality firmly on the agenda.

A few other notes on A Five Part Plan for Patent Reform:

  • It’s not a plan, rather an exploration of “five key areas in which the patent system is ripe for reform.” The word plan doesn’t even appear in the text. Well worth reading, but don’t expect to find an actionable plan with five parts.
  • Notes that patent trolls existed in the 1800s (individual farmers were bullied to pay royalties for farm implements covered by patents), which is good (too often current discourse assumes intellectual property worked just fine until recently, with conflict caused by changing technology rather than by power and rent seeking), but then: “Analogously, as discussed above, farm technology was widely used in the nineteenth century, and patents on farm technology were hotly contested. Patents on those farm tools were effectively abolished. But that fix to the patent system did not prevent the software patent problems faced today—it ultimately was a Band-Aid rather than a cure. The same would be true of eliminating software patents. The fundamental issue is that the technologies of tomorrow are unknown, so targeting patent reform to one specific field of technology means that the same problems will only arise again in a different technological sector.” Sure, only abolishing all patents is sufficient, but this analogy seriously undersells the benefit of abolishing software patents: agriculture then was in relative decline of importance in the face of industrialization. Now, software is ascendant, and any technology of tomorrow that matters will involve software.
  • Focuses on FRAND (fair, reasonable and non-discriminatory) licensing for standards. But RF (royalty free) licensing is required for any standard in which commons-based projects are first class participants (e.g., free/open source software and codec patents). No doubt unscrupulous behavior around FRAND and standards is a problem, but the solution is RF for standards.
  • From the Public Knowledge site, reading the paper requires first supplying an email address to a third party (gumroad). Annoying, but on par with PK’s newsletter practices (one of the many favoring tracking users at cost of usefulness to users). Better, the paper is released under CC-BY-SA, so I uploaded a copy to the Internet Archive. Best, Duan has published the paper’s LaTeX source.

Protect commons from patents

Friday, April 11th, 2014

Rob Landley has a good idea: software patents shouldn’t apply to public domain software. This is exactly the kind of commons-favoring reform that ought be topmost on the agenda of anyone who cares about a good [digital] future. It will take years for many such reforms to be feasible. This only means it is urgent for commoners of all free/open stripes to begin thinking of themselves collectively as a politically potent self-interested group, not as merely surviving through private opt-outs from increasingly bad regulation and reaction against apparent existential threats.

I’m a huge fan of the public domain and think that among private opt-outs, public domain instruments ought be used much more than they are. Landley makes an interesting case (historical and otherwise, read his full post) for limiting protection from software patents to public domain software rather than any free/open source software, but I disagree — in this reform step, it makes sense to protect developers and users of any free/open source software from patents with regard to that software.

Up to the last paragraph the rest of this post is dedicated to this disagreement (and in another sense of dedicated, to the public domain, as is everything by me), but don’t let that distract from my overall appreciation of Landley’s post — read the whole thing (his blog is also interesting overall, stylistically like early blogs, and it does have posts back to 2002, though I’ve only been following it approximately since the first link in previous paragraph: see link text “disagree”, appropriately enough).

Landley writes:

The reason to say “public domain” instead of “open source” is partly that open source is difficult to legally define

Public domain hasn’t got that problem. It avoids the whole can of worms of what is and isn’t: the code is out there with zero restrictions.

1) Existing law and regulation deals with “open source”, e.g. the U.S. Department of Defense and the Italian government. This is no significant obstacle. On the other hand, “public domain” has another problem: FUD about whether it is “legally possible” to put new works in the public domain and whether various public domain instruments “work”. This FUD needs to be combated, but I think it’ll be more effective to do so in part by getting public domain instruments recognized as free/open instruments by various gatekeepers than by dumping FUD on the same.

The price for freedom from patents should be zero restrictions: if the authors have no control over what people can do with it, why should uninvolved third parties have a say? Ideally the smooth, frictionless legal surface of the public domain should go both ways.

That’s the constitutional argument: freely redistributable, infinitely replicable code serves the stated constitutional purpose of copyrights and patents better than patents do. Releasing your copyrights into the public domain should also prevent patent claims on that code.

2) That’s a fine assertion, but it’s really outside the free/open source (and nearby) consensus on software patents: they should be abolished, i.e., one should not have to give up anything to be protected from them. Changing the focus to strategically demanding freedom from patents for free/open source software (while still agreeing they ought be abolished for all) would mark a huge shift in the imagination of the movement(s). Limiting the scope of protection to only public domain software: how is it imaginable to take that idea beyond an interesting blog post? I wish a huge constituency for public domain software existed, but as of now it is a rounding error.

3) Zero restrictions is a fine ideal (indeed, copyright and patent should be abolished entirely), but whether viewed as a “price” or grant of permissions, releasing work under any free/open license makes very significant grants. Attendant conditions may be annoying, self-defeating, necessary, or something else depending on one’s perspective (I try to view them charitably as prototypes for more effective regulation not based on copyright holder whim, but also think it is worthwhile to try to improve them, and, as above, encourage more use of public domain instruments) but obviously these licenses are adequate to facilitate vibrant commons projects (essentially all well known free/open source software, except for SQLite and djbware, which use public domain dedications), and it is the actual commons that needs to be favored, not some idealized zero friction symmetry between patent and copyright.

The historical reason to say “public domain” instead of “open source license” is possible legal precedent: back when software was unpatentable, it was also uncopyrightable. An awful lot of public domain software used to exist, and when people added copyrights to it, they opened it to patents as well. Software that _isn’t_ copyrighted, historically, also wasn’t patented. If somebody tries to enforce patents against public domain software, we can make a clear distinction and ask a judge to opine.

4) I’m not a lawyer, but I’d bet heavily against us winning. Happy to be wrong.

5) I’ve already mentioned size of the constituency for (2) and quantity of (3) free/open source software relative to only public domain software, but these bear repeating in the form of size of benefit. Protecting all free/open source software from patents would immediately benefit millions of free/open source software developers and users, and solve big problems for free/open source software and standards. There would be essentially no immediate benefit from only protecting public domain software from patents. Long term it would encourage more public domain software. To make that extremely lopsided trade off one has to believe that free/open source licenses are really, really awful relative to the public domain. I can understand that belief emotionally, but don’t think what evidence we have about success of various projects bears the belief out. Rather, the specific conditions (including none) just aren’t all that important so long as a minimum of permissions are granted. Exclusive public domain advocates may hate licenses, but licenses just don’t matter that much!

As the title of this post implies, free/open source software (inclusive of public domain software) is not the only commons threatened by patents that ought be favored through blanket protection from patents. Defining some of these (e.g., for seeds, 3D printing, general purpose robotics, and synthetic biology?) will be harder, in part because there may be no “well understood term in the trade” such as “open source”, but this is a much smaller hurdle (indeed, a sub-sub-task of) than organizing the relevant constituencies and making the case to the public and policymakers that favoring commons is indeed good policy.

Innovation Policy in a World With Less Scarcity

Friday, March 28th, 2014

Mark Lemley’s new paper IP in a World Without Scarcity provides good overviews of the case “that on the Internet, we increasingly get creativity in spite of, rather than because of, IP law” — the exclusivity incentive for creation story, if it were ever true, is drowning in non-exclusive creativity, and theories that distribution and revelation also require an exclusivity incentive also seem quaint given the Internet — and of 3D printing, general purpose robotics, and synthetic biology, which “share two essential characteristics with the Internet: they radically reduce the cost of production and distribution of things, and they separate the informational content of those things (the design) from their manufacture.” Thus, Lemley argues, economics and policy need increasingly to grapple with an end to scarcity, IP will be increasingly important, and we can draw lessons from the Internet about how this all will and should play out.

The paper is a quick read at 55 double-spaced pages. I recommend it to anyone interested in near future technology and policy. The paper’s final sentence:

Thinking about such questions has been the province of science fiction authors, but understanding what a post-scarcity economy will look like is the great task of economics for the next century.

Lemley cites two SF books very familiar to many readers: Down and Out in the Magic Kingdom by Cory Doctorow (my positive review) and The Diamond Age: Or, A Young Lady’s Illustrated Primer by Neal Stephenson, which just a few days ago I exploited in a private communication: “…the primer is an interactive learning notebook which adapts as the owner learns, informing a generation of geeks’ vision of education and development. Such tools are increasingly feasible. Will all humans have full access to, and ability to participate in the development of such tools? Only if they are developed in the commons, which will only happen with intentional action.” That’s probably a good segue into my disagreements with and additional idiosyncratic observations about IP in a World Without Scarcity.

By IP, Lemley means intellectual property: mostly copyright, patent, trademark. That has been and will be increasingly a terrible frame for thinking about policy. It gives away the farmfuture to owners of the past, who, as Lemley notes “will fight the death of scarcity” as they have fought the Internet — with more criminalization, more lawsuits, more attempts to fundamentally alter technologies in order to protect their rents. This seems rather suboptimal given that we know the theory upon which IP rests is largely bunk. The alternative, assuming we still only wish to maximize innovation, is to make innovation policy the frame. This makes turning the enclosure dial up or down a sideshow, and pulls in non-enclosure incentives and a host of more indirect and probably much more important determinants of innovation, e.g., education and governance.

The paper provides a couple reasons for focusing on the enclosure version of IP (Lemley doesn’t need any reason; he’s an IP scholar, and though I wish such people would reconceptualize themselves as commons scholars, I have no expectation; in any case the “reasons” are my reading). First, the framing isn’t as harmful as I made it out to be, because IP owners’ fight against the Internet “didn’t work. Copyright infringement remains rampant” and against other democratizing technologies, “IP owners will (probably) lose that fight.” But winning isn’t binary, nor is the continued existence of rampant copyright infringement a good indicator.

Given that network effects are highly relevant for many kinds of knowledge products — a tool or experience is much more valuable if other people can be expected to know it — a significant level of piracy can be profit-maximizing for an IP rent collector. Better indicators might be the collapse of profits from IP rents (the movie industry continues to grow, and while the recorded music industry has declined from its peak, this is nothing like an icehouse collapse, and many other IP rent sectors continue to grow) and the displacement of IP rent collectors as the marketers the dominant knowledge products of the age by other entities better adapted to a world in which fighting against the Internet doesn’t work (the mass and high-status markets are dominated by IP rent collectors in nearly all fields, exceptions being encyclopedias and certain kinds of infrastructure software). These might be minor, highly debatable (maybe the music industry will soon recommence a full collapse, be joined by movies, both displaced by crowdfunding and crowdmarketing; I doubt it given the properties controlled by IP rent collectors and other entities’ unchanged desperation to cut unfavorable deals with them) quibbles, if the IP owners’ “losing” fight against the Internet hadn’t significantly damaged the Internet.

But the Internet has been damaged by the IP owners’ fight. Absent an academic characterization of how significant that damage is (which I would love to read), here are some of the ways:

  • Chilling effect on P2P research, result: more centralization;
  • Services police user content; expensive, barrier to entry, result: more centralization, near monopoly platforms;
  • Services cut rare and unfavorable deals with IP owners, result: same;
  • Innovative services fail to cut deals, or sustainable deals, with IP owners, result: less innovation, more Internet as TV;
  • Monopoly abets monopoly; creates opportunities for bundling monopolies, result: threat to net neutrality;
  • Copyright-based censorship provides cover for all kinds of political censorship, result: political censors have additional justification, doing what Hollywood does;
  • All of above centralization and monopoly makes dominant entities a target for compromise, result: mass surveillance and non-state cybercrime abetted;
  • Our imagination and expectation of what the Internet makes possible is diminished, result: DRM TV and radio and silos organized for spying are seen as the norm, information organized for public benefit such as Wikipedia, unusual; this flipping of democratic hopes for the Internet, a partial AOL scenario, is collateral damage from the IP owners’ war on the Internet.

Similar damage will be done to the potential of new technologies with Internet-like characteristics (in addition to those discussed in the paper, others add the Internet of Things, distributed energy generation, and educational technologies, e.g., Jeremy Rifkin in his new book The Zero Marginal Cost Society, which I plan to review soon) by incumbents. This makes Lemley’s policy recommendations seem overly tentative and timid:

[It] is hard to translate this skepticism into immediate policy prescriptions, both because the whole point is that the need for IP will be sensitive to individual industry characteristics and because the technologies I am discussing are still in their infancy […] “we should resist the tendency to expand IP reflexively to meet every new technological challenge” […] “IP owners should not be allowed to reach beyond suing infringers and seek to shut down or modify the technology itself” […] “IP law needs to make it easier for creators to opt out of the IP regime.”

IP rent collectors will not hold off protecting their interests pending idealized analysis of more fully developed technologies. The damage they do will be built into another generation of technology and society, with IP scholars and activists left to worry that policy is contrary to evidence and to take rearguard actions to protect the level of openness they’ve become accustomed to, but fail to imagine what would have been possible had the stranglehold of IP rent collectors been broken. Just like the Internet today. I’ll come back to less timid and more proactive policy response in a bit.

Second reason for focus on the enclosure version of IP, the usual — big budget movies (and regulated pharma, mentioned earlier in the paper):

There is still a role for IP on the Internet. There are some works that are so costly to create even in the digital world that they are unlikely to be made without effective IP protection. Big-budget movies and video games cost hundreds of millions of dollars to make. No amount of creative fire will drive someone who doesn’t have hundreds of millions of dollars to make Peter Jackson’s Lord of the Rings trilogy. They need corporate backing, and the corporate backers need a revenue stream. But in the Internet era those works are increasingly the the exception, not the rule.

My usual response — we should allow enclosure of our freedom, equality, and the democratic potential of the Internet in order to ensure an ongoing supply of spectacle provided in the same way it has for decades? Spectacle over freedom, really? Of course the “reason” is far more pessimal than that, as the cost of producing and distributing spectacle is going down fast, as is the cost of coordinating distributed patrons who want product, not rent collection. Further, because culture is also so dominated by network effects, we’ll all love whatever spectacle is produced, whether it took 15 or 500 months of work per minute of spectacle. It’s not as insane to contemplate threatening liberal values in order to get new drugs as it is to get new movies — but then considering non-enclosure mechanisms for developing and evaluating new drugs, and the issues of access and equality are more pressing…

More Lemley:

IP is essentially a form of government regulation. The government restricts entry into the market, or alternatively controls the price at which that entry can occur, in order to serve valuable social ends. But regulation is not a moral entitlement or something that we must take for granted. In the past, government regulated all sorts of industries – railroads, trucking, electric power, gas, telephones – because it could not see given the economics of those industries how a free market could produce socially optimal results. But in a surprising number of cases, when we deregulated those industries we found that the market could indeed find a way to supply goods we thought would be provided only with government rule-making. IP is no different in this respect than any other form of regulation. Regulation as a whole shouldn’t disappear, but regulation of particular industries often turns out to be a reflexive response to a failure of imagination, something we do because we have done it for so long that we cannot imagine how a market in that industry could function without it.

This is certainly superior to the rights/owner/property characterization inherent in IP — it recasts “owners” as beneficiaries of regulation — and I think implicitly makes the case for switching one’s frame from intellectual property to innovation policy. That leads us to what the goal of “innovation policy” regulation ought be, and sufficiently proactive policies to achieve that. Should the goal be to maximize “innovation”, “creativity”, the “progress of science and useful arts”, or the like? It would be a huge improvement to sideline enclosure as the primary mechanism and retain the same top objective. But even that improvement would be short sighted, given how systematically innovation policy regulation has and will increasingly shape society. A success of imagination would be to make freedom and equality the top objectives of and constraints on innovation policy, and only then maximize innovation. The innovations generated by a free and equal society are the ones I want. Others are to be gawked at with dismay and guilt.

On proactive policies required, in brief they are pro-commons policies, and I return to Benkler:

Regulators concerned with fostering innovation may better direct their efforts toward providing the institutional tools that would help thousands of people to collaborate without appropriating their joint product, making the information they produce freely available rather than spending their efforts to increase the scope and sophistication of the mechanisms for private appropriation of this public good as they now do.

That we cannot fully understand a phenomenon does not mean that it does not exist. That a seemingly growing phenomenon refuses to fit our longstanding perceptions of how people behave and how economic growth occurs counsels closer attention, not studied indifference and ignorance. Commons-based peer production presents a fascinating phenomenon that could allow us to tap substantially underutilized reserves of human creative effort. It is of central importance that we not squelch peer production, but that we create the institutional conditions needed for it to flourish.

Which implies that commons scholarship ought displace intellectual property scholarship (except as a historical investigation of commons malgovernance).

I realize that I haven’t provided any specific pro-commons policy recommendations in this post, nevermind any that are especially pertinent in a world with less scarcity. I’m deeply skeptical that lower, different costs substantially change innovation policy or knowledge commons arguments — the same ones have recurred since at least the 1800s — and am extremely doubtful that the usual assumption that digital networks fundamentally change desirable policy (or here, that further technologies with digital network like characterizations further change desirable policy) is true or non-harmful — these assumptions give away (legitimize) the past to those who now use it to control the future. Some short term and narrow but valuable pro-commons policy suggestions arising from the Wikimedia movement; the free software movement offers other suggestions, if we take some of its practices as prototypes for regulation enforced by mechanisms other than copyright holder whim, more powerful and better aligned with its claims of software freedom as a human right.

A few final quotes from Lemley’s IP in a World Without Scarcity, first two from footnotes:

The challenge posed to copyright by collective production sites like Wikipedia is not just one of the need for incentives. Collective production challenges the whole concept of authorship.

Indeed, and as I keep repeating effective product competition from the commons (such as Wikipedia) re-imagines the range of desirable policy and reduces the resources available to enclosure industries to lobby for protectionism — in sum shifting what is politically possible.

It is possible that creators create in hopes of being one of the few superstars whose work is actually rewarded by copyright law. It is well known that people systematically overvalue the prospect of a large but unlikely reward; that’s why they buy lottery tickets. Some scholars have suggested that the same effect may be at work in IP. But if so, the incentive on which we rely is, as Kretschmer puts it, “based on a systematic cognitive mistake.” In effect, we are coaxing works out of these creators by lying to them about their chances of getting paid.

This has long struck me as being the case. The question is then (in addition to considerations above), do we really want a culture dominated by fools and sell-outs?

A world without scarcity requires a major rethinking of economics, much as the decline of the agrarian economy did in the 19th century. How will our economy function in a world in which most of the things we produce are cheap or free? We have lived with scarcity for so long that it is hard even to begin to think about the transition to a post-scarcity economy. IP has allowed us to cling to scarcity as an organizing principle in a world that no longer demands it. But it will no more prevent the transition than agricultural price supports kept us all farmers. We need a post-scarcity economics, one that accepts rather than resists the new opportunities technology will offer us. Developing that economics is the great task of the 21st century.

But we should aim for much better than the travesty of developed country agricultural policy (even before considering its baneful intersection with IP) as the legacy of this transition! But the consequences of continued capture of innovation policy have the potential to be far worse. Even if few are employed in information industries, there is no transition on the way to displace arranging information as the dominant mode of the economy (however measured; previous modes being hunting/gathering, agriculture, and industry); if the mode is largely controlled by rent collectors, the result could be a very unfree and unequal society — perhaps on the order of pre-industrial agricultural societies.