Think Free Press, not Free Beer: Toward a Discourse Ethic for Software

A few strands starting to weave together . . . at the Brecht Forum book event, Biella, Samir, and I talked a bit about the tension between the communitarian and libertarian impulses within FOSS . . . at the Brooklyn College/Wolfe Institute book event a couple weeks ago, Mako talked a bit more about his dissatisfaction with our treatment in the book of the distinction between the free software and open source software movements . . . and Samir and I are finishing up a journal article, based on our presentation at NA-CAP last July, about why Freedom Zero is so important.

One of our arguments for Freedom Zero (which essentially says that the creator of a piece of software can't forbid its users from using it for any particular purpose) is that it supports an aspect of discursivity both within the development community and within the user community (to the extent those are distinct).

Doing a little research to see how that kind of idea has been fleshed out elsewhere, I stumbled across some surprisingly interesting sources. One is a piece by Nick Couldry, "Digital divide or discursive design? On the emerging ethics of information space," which appeared in Ethics and Information Technology 5 in 2003. In it, Couldry meditates on the extent to which the Internet (broadly construed) might be cast as a 'discursive design.'

The notion of 'discursive design' was introduced by political scientist and critical theorist John Dryzek in 1990, in his book Discursive Democracy. As Couldry points out, Dryzek represents

a particular strand within deliberative democracy theory, which insists it should not be limited to considering the ideal speech situation and the broad principles of democratic participation but must think concretely about the institutional preconditions for any actually existing public sphere.

Couldry goes on to quote Dryzek's short definition of discursive design:

a social institution around which the expectations of a number of actors converge [which] . . . therefore has a place in their conscious awareness as a site for recurrent communicative interaction among them . . . as citizens, not as representatives of the state or any other corporate or hierarchical body.

From that definition, Couldry raises a number of questions concerning how and whether the Internet meets this definition, questions that are relevant to the consideration of FOSS. Among them, not surprisingly, are the question of what it is to 'converge,' and who exactly converges; what 'recurrent communicative interaction' means and what it can produce (as Couldry points out, "Deliberation is not just talk . . . . [it] must be more than a talking-shop without consequences."); how state and corporate power relate to this deliberation; and how such putative discursive designs evolve over time.

Dryzek's book itself is rich with suggestive material (especially the first half; the latter part of the book is rich in case studies that would likely be of interest to a political scientist but are a little hard to abstract from). One relevant observation of Dryzek's about the difficulties of maintaining true discursive designs:

State and corporate actors may seek some association with, or even participation in, discursive forums. The door is open to manipulation by these actors. They can cloak private interests in a rhetoric of public concern, perhaps even in the genuine belief that what is in their own interest must also be in the public interest. They can make superficial concessions to opponents and thereby secure passive acquiescence on the part of potential troublemakers. (p. 81)

It seems to me that the 'discursive design' framework is one worth exploring more carefully to see what it teslls us about FOSS. In particular, I'm intrigued that it echoes ideas in Coleman's dissertation that we need to be analyzing FOSS in terms of what hackers are actually doing and saying, and it explicitly incorporates an idea Mako spent some time talking about at Brooklyn College, that of the appeal of the "institutional independence" of FOSS.

At the same time, I ran across a piece by Patrick Lee Plaisance, "The Mass Media as Discursive Network: Building on the Implications of Libertarian and Communitarian Claims for News Media Ethics Theory," which appeared in Communication Theory 15(3) in August 2005. I first misread the title as referring to "new media" rather than as "news media," which caused me no small confusion. But it's a very relevant piece of writing. Knowing next to nothing about theories of the press, I was delighted to learn that there is an ongoing and vigorous (at least in some circles) debate about whether the purpose of the media is best defined in accordance with libertarian or communitarian principles. Plaisance makes plain the importance of the difference:

In the libertarian framework, the media system should express man's "natural," Lockean state, which advocates have said must be a robust, unfettered marketplace of ideas that ought not to constricted by a constant insistence on social justice. In the communitarian framework, the full self-realization of each individual, both as freedom-loving beings and as engaged members of a community, must be the underlying motive of all media policies. They do not rest on the same moral foundations and thus are essentially posing different moral questions.

It's almost hard to believe he's not talking about FOSS.

Plaisance goes on to critique libertarian press theory, with the final assessment that

Libertarian press theory, at bottom, is hampered as a moral theory by its unsubstantiated assertion that the product of the media marketplace, which is only one out of an infinite number of possible outcomes, somehow has privileged status as "the truth" . . . . To resort to such is to strip truth of its moral power and leave autonomy stripped of any function save its own worship.

Now, journalistic 'truth' doesn't have an obvious cognate in the vocabulary of software engineering, but certainly this critique echoes some of the critiques of libertarianism that have been leveled at some open source advocates.

On the other hand, a communitarian press ethic suggests that (here Plaisance quotes from E. Lambeth's 1992 text, Committed Journalism)

by action on yet another principle--stewardship of free expression--the committed journalist embraces the concept of community defined as the shared practice of inquiry. By cultivating and pursuing standards of excellence in the craft of reporting and interpretation, the journalist acquires the truth-telling ability to stimulate and assist the inquiry of fellow citizens.

Plaisance goes on to sketch out a "discursive-network model" for the media:

At the core . . . is a fundamental shift in our understanding of audience expectation and participation. Conceiving of the "public" served by media as a population for moral agency requires more than the instrumental application of ethics . . . . [T]his model sets forth the justification . . . to expect news practitioners not merely to view ethical standards . . . as proscribing their own behavior . . . by rather that the cultivation of moral agency be embraced as a central objective of the press.

Which brings me to the title for this posting: I wonder what happens if we analogize the social good provided by software with a free press rather than with free speech. I'm increasingly convinced that the real ethical meat of free software lies in the sorts of public discourse it supports, both among developers but also, and arguably more importantly, among 'regular' users; of course free speech is a necessary condition for that, but I'm not certain that it's the goal toward which free software should be conceived of as moving.

Math and Open Source

Jill Cirasella, Decoding Liberation's in-house librarian, points out a recent piece in Notices of the American Mathematical Society which speaks to the increasing significance of FOSS in mathematical research. (One of the authors, William Stein, is lead developer of SAGE, an open source mathematics software system.) Stein and co-author David Joyner offer this scenario:

Suppose Jane is a well-known mathematician who announces she has proved a theorem. We probably will believe her, but she knows that she will be required to produce a proof if requested. However, suppose now Jane says a theorem is true based partly on the results of software. The closest we can reasonably hope to get to a rigorous proof (without new ideas) is the open inspection and ability to use all the computer code on which the result depends. If the program is proprietary, this is not possible. We have every right to be distrustful, not only due to a vague distrust of computers but because even the best programmers regularly make mistakes.

Indeed, as the authors point out, the makers of proprietary mathematics software, such as Mathematica, are perfectly aware of this limitation, though they deploy some contorted rhetoric in order to cast it as nothing more than an occasional minor inconvenience. Joyner and Stein quote briefly from the Mathematica tutorial document "Why You Do Not Usually Need to Know about Internals," which is worth taking a closer look at. First, according to the tutorial,

You should realize at the outset that while knowing about the internals of Mathematica may be of intellectual interest, it is usually much less important in practice than one might at first suppose.

Why? Oh, because

the vast majority of the computations that Mathematica does are completely specified by the definitions of mathematical or other operations. Thus, for example, 3^40 will always be 12157665459056928801, regardless of how Mathematica internally computes this result.

Fabulous news, really -- Mathematica always produces correct results! Guess we can fire all those guys down in testing (and my friends who do formal methods research will have to retool). One of the keys to this is, apparently, the fact that

Mathematica can usually use its arbitrary-precision numerical computation capabilities to give results where every digit that is generated follows the exact mathematical specification of the operation being performed.

But wait: maybe you're not at all worried about correctness (a secondary consideration for most mathematicians) but would like hack up a more efficient approach for some Mathematical calculation. Might you not need to analyze the implementation of said calculation? Not really, because

most often the analyses will not be worthwhile. For the internals of Mathematica are quite complicated, and even given a basic description of the algorithm used for a particular purpose, it is usually extremely difficult to reach a reliable conclusion about how the detailed implementation of this algorithm will actually behave in particular circumstances.

There you have it: the code of Mathematica is so complicated that analyzing it wouldn't help you get a more efficient implementation, yet it's not so complicated so as to prevent blithe assurances of exact mathematical correctness.

Decoding Liberation at the Wolfe Institute

Yesterday, the Wolfe Institute at Brooklyn College hosted an interdisciplinary colloquium to celebrate the release of Decoding Liberation. The featured speakers were Tim Shortell and Benjamin "Mako" Hill. Robert Viscusi of the Wolfe Institute kicked things with a little welcome spiel, pointing out the importance and relevance of the free software community's discourse about creativity and 'intellectual property' to the humanities ("Shakespeare wouldn't have been able to publish in today's copyright regime"!); Scott Dexter read out parts of Decoding Liberation's introduction; I followed with a brief discussion of how the book project started and what its various chapters covered, and then handed off to Tim Shortell.

Tim started with a little recounting of how he came to encounter the free software philosophy by way of his experiences while working as doctoral student in social psychology that wanted to write text-processing tools for discourse analysis. The fledgling community of researchers in that field gladly shared code and techniques, enabling each other to build on the shared work and to go further than anyone would have been able to go on their own. Tim then proceeded to ground his discussion of Decoding Liberation on the theme of alienation, finding various manifestations of it in the different chapters: alienation of workers from their products, of users from technology and within the science of computing, of scientists from the works of other scientists. He then framed a few questions about possible futures for free software and turned it over to the audience for discussion. This first stage touched upon some expected themes: the reluctance of corporate incumbents to let go of established business models that stress proprietary regimes, the applicability of free software concepts and models to other fields, the possibility of reworking notions of knowledge as a commodity and our understandings of intellectual property.

For the next stage, I introduced Benjamin Mako Hill, who began by providing some interesting perspectives on the real and supposed differences between the free software movement and the open source movements, stressing that differences were largely tactical rather than ideological. There were some interesting historical notes, and the notion was developed that the freedoms of free software, as developed and articulated in the Free Software Definition, the Open Source Definition, and the Debian Free Software Guidelines were by far the most important principles for the community, more important than any ideological differences, whether political or technical (I loved the story about the two Debian developers who, in the course of arranging a key-signing meeting, found out that one was a delegate for the Republican National Convention, and the other a protester). Mako then went on to talk about how the community's strongest point was its institutional independence, its ability to respond to user needs in a manner and fashion unknown to its proprietary counterpart, and its dire need of bug-catchers to help iron out kinks in development efforts. Mako's talk was followed by more interesting discussion about the extension of free software notions to literature, the possibility of free software extending its reach into domains like gaming where it lags, and clarifications of copyleft, the problem of patenting, and the importance of free software to computer science pedagogy.

All in all, a great discussion, very educative and thought-provoking. My sincere thanks to the audience, to the speakers, and to the Wolfe Institute.

As a reminder, the Center for Place, Culture and Politics will be hosting a book party for us at the CUNY Graduate Center on November 29th (6PM - 8PM).

A funding appeal from the SFLC

I know, I know, a big gap in blogging again. Let me try and get things started again by forwarding Eben Moglen's appeal for funding for the Software Freedom Law Center. (As its Eben, the appeal is eloquent):


Dear Friend,

I am writing to you to ask that you consider a donation to the Software Freedom Law Center this year as you make your year-end giving plans. Now completing its third year of life, SFLC has produced a body of distinguished legal work in the public interest. Our ability to continue this work relies on your support.

http://softwarefreedom.org/donate

When my colleagues and I formed SFLC in 2005, with the generous support of the Open Source Development Lab and its member companies, our intention was to build a legal services organization for a unique community: the far-flung collection of programmers and projects that constitute the non-profit Free Software and Open Source landscape. Our philosophy of practice is that early legal assistance offered to projects when they are young prevents problems, reduces friction, and benefits everyone. We are primarily counselors and advisers, rather than litigators; we believe in being, where appropriate, "lawyers for the situation," in Louis Brandeis' classic phrase, rather than partisans.

Our clients are talented and generous people who put their technical virtuosity and hard work into making wonderful software everyone can freely copy, modify, and share. Our practice on their behalf conforms to their values: we try to create agreement and eliminate artificial barriers to innovation and access to technology. Our goal is to eliminate risks today, rather than to sue over them tomorrow.

In these last three years we are proud to have built a client list that includes the Apache Software Foundation, the GNOME Foundation, the Free Software Foundation, the Sakai Foundation, the Software Freedom Conservancy and X.org to name just a few. Some high-profile activities, like our involvement in the making of GPLv3, have received more than their share of attention. But it's the less visible aspects of our practice that have, in my opinion, created the most value for our clients and the surrounding community. For example, we have helped projects to restructure and reorganize themselves to ensure sound corporate form and governance, limiting liability that could have jeopardized the very projects that those structures were establish to protect.

Reproduced below is our information sheet that lists some of the work we can talk about. We've been active invalidating patents, reviewing code bases sullied by accusations of infringement, providing licensing assistance, pursuing enforcement, developing copyright and trademark policies with our clients and publishing educational materials that we hope will benefit the whole community.

I've been practicing legal education as well as law for twenty years, and from my perspective, SFLC is as important for its role in training lawyers specialized in these issues as it is for the client service it provides. SFLC is able to recruit, employ, and train lawyers who will carry on the representation of FOSS programmers not only in the US, but around the world. We are preparing to open our first affiliated practice, in New Delhi, India, where we plan to participate from the ground up in the development of the Indian free software development community.

Of course, as every fundraising letter must sooner or later surrender to cliche and disclose, "all this costs money." Vendor support is still the mainstay of our funding; we're very grateful for the generous support of the companies who provide funds to ensure that hackers have counsel.

But if the vendors are our only contributors, we put at risk our definition as a public charity, and rightly so. We don't want to be lawyers offering services to hackers on behalf of a community of corporations: We want to be lawyers working for, coming from, and supported by the community as a whole.

Free software law from the beginning--or at least as far back as my experience extends--was always about reducing friction by increasing the peace. The cardinal idea that we all do better by sharing, which has gone hand in hand with transparency and peaceful methods of dispute resolution, has created both economic and social value beyond all but the most wildly optimistic expectations. Please help me, and the outstanding colleagues who practice with me at SFLC, to continue doing what we can to represent, cherish, and foster this way of making software.

http://softwarefreedom.org/donate

Software freedom is good for almost everyone, and it needs to be protected. This year, please give generously.

Thank you,

Eben Moglen
President and Executive Director
Software Freedom Law Center

November 2007
About Us

The Software Freedom Law Center provides legal representation and other law-related services to protect and advance Free and Open Source Software (FOSS). Founded in 2005, we now represent many of the most important and well-established free software and open source projects. As an independent 501(c)(3) non-profit organization, we are able to offer our services for free to the developers we represent.
What We've Been Doing

The Software Freedom Law Center has made significant strides in accomplishing our mission to protect and advance Free and Open Source Software. Since our founding, we have:

* Built from scratch the technological infrastructure required to run a law firm using entirely Free and Open Source Software. This includes a VoIP system that allows for sophisticated telephone call routing and conference calling at a fraction of the traditional costs of such services, as well as a time tracking system that allows SFLC staff to record and report time spent on SFLC activities.
* Provided legal and organizational support to our client's process of updating the GNU General Public License to version 3 (GPLv3). SFLC created a web-based public document commenting system which facilitates public discussion of documents. SFLC helped draft the new license and mediated the GPLv3 discussion committees.
* Successfully defended against a lawsuit filed in the Southern District of Indiana alleging that the GPL is an anticompetitive restraint of trade.
* Published white papers to share our legal expertise with the broader FOSS community. These papers have considered: using GPL licensed software in light of Sarbanes-Oxley; alleged patent issues with implementing the OpenDocument format; U.S. rules governing Software Defined Radios; standards for copyrightability; and guidelines for maintaining permissive-licensed code in a GPL project.
* Launched the Software Freedom Conservancy, an organization that acts as a fiscal sponsor to FOSS projects and provides them with financial and administrative services. Member projects now include ArgoUML, Boost, BusyBox, Inkscape, Libbraille, Mercurial, OpenChange, SurveyOS, Samba, uCLibc and Wine.
* Co-hosted a conference on software patents held at Boston University and MIT. Held our first annual legal summit and included an afternoon of educational presentations to the public.
* Filed a formal request with the U.S. Patent and Trademark Office, asking them to re-examine Blackboard's patent on e-learning systems. The Patent Office accepted the request and ordered re-examination of the patent.
* Audited OpenHAL's code base and determined that there was no illegal copying from Atheros' proprietary HAL code. We also analyzed its ISC license compatibility. OpenHAL is low-level interface software for Atheros-based wireless cards, which is used in both Linux and OpenBSD systems.
* Filed the first-ever U.S. GPL infringement lawsuit on behalf of developers of BusyBox against Monsoon Multimedia. The case has settled and the defendant has promised to comply with the GPL.

Inside SFLC: Review of Linux Wireless Code Completed

Last month, SFLC announced that it had carefully reviewed the lineage of the open source Atheros wireless driver for Linux and determined which portions can be distributed under the ISC license (also known as the 2-clause BSD license).

The licensing situation for the Atheros driver is complex because much of it was originally derived from an OpenBSD project called ar5k. This original code is licensed under the ISC license, but Linux code is typically licensed under the GNU General Public License (GPL). The GPL places specific additional requirements on distributors of software to ensure that its users are able to obtain the software's source code, and freely to copy, modify, and redistribute all subsequent modified versions.

Ultimately, all the copyright holders of the Linux ath5k-driver code, derived from ar5k, were contacted and agreed to license their changes under the ISC license, thus allowing improvements to be re-incorporated into OpenBSD. One of the three historical branches of the code reviewed by SFLC, however, included portions that are only licensed under the GPL, and SFLC has determined that it would be very difficult to re-incorporate that code into OpenBSD.

To share its knowledge with the FOSS and legal communities and to share background regarding its analysis, SFLC also released two documents of general interest. One document is a set of guidelines for developers who wish to incorporate code with a permissive license, such as ISC, into a GPL-licensed project. The other paper discusses the legal standards of originality with regard to computer programs under U.S. and international copyright law.

This is not the first time that SFLC has worked with the Linux Wireless developers. In July, SFLC announced that it had performed a confidential audit of the open source Atheros driver and determined that no portion of it was illegally copied from Atheros' proprietary code.
For More Information...

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