As my friends and colleagues will attest, I have been raving on about Free and Open Source Software for over a decade now, and about establishing a “legal centre” around Free and Open Source Software development for almost half that time.
Free Open Creative Law is the beginning of a concerted effort to create a community where we can explore not just the legal issues around Free and Open Source, but the broader economic, commercial, philosophical, sociological and legal issues for “Sustainable Sharing”, a phrase I thought I just made up, but which I now see Sustainable Melbourne were discussing last year (in the context of physical goods) and Peninsula Park Commons implemented back in 2003/4 (in the context of housing)!
Above all, Free Open Creative Law is tasked with helping turn our collective wisdom into initiatives that promote open innovation through Sustainable Sharing, whether it be through law reform, Social Enterprise (such as contract and systems/platform development) or education.
The importance of “sharing” and the IP monopoly conundrum
From before we can even remember, most of us were taught to share. Whether it was sharing our toys in the backyard, or through the example of our primary and high school teachers sharing their knowledge with us in class, most of us grow up in an environment where helping each other is the #rightthingtodo.
While in today’s playgrounds children are taught not to share their lunch (due to fears of allergic reactions), my first memory of being told it would be “wrong” to share was when I bought Rocket Raid, a computer game for my Dad’s BBC Model B (which is still stored in our garage, much to Neroli’s chagrin).
Ironically, while I wasn’t supposed to give my friends a copy of Rocket Raid, it was perfectly OK for us to share each others’ Acorn User magazines and type in the games they contained by hand (back in those days, there was no DVD on the front and you’d have to mail order the cassette from the UK – so us kids just typed them in and learnt to debug through the typos). We even “crowd sourced” by taking turns typing them in and sharing them on disk. This was my introduction to “open” source (although I am not sure what the actual terms of the licence were)!!
Notwithstanding I have been a Free and Open Source Software user and advocate since the mid-90’s, it was attending Richard Stallman’s presentation earlier this week on “Free Software in Ethics and in Practise”, that took me back to this fundamental moral question, “when is it right to share?”
In RMS’s view, while it is not right to break an agreement you have made by sharing proprietary software, that is the “lesser evil” than refusing to share that software with a neighbour who wants/needs it. In essence, RMS’s view as initially advocated in the GNU Manifesto, is that it is unethical to acquire or supply software on terms that restrict a user’s four freedoms to use, modify and redistribute both modified and unmodified copies of that software.
While copyright and other intellectual property laws generally grant a monopoly to creators of original works, with the intention of encouraging innovation, the above four freedoms place the freedom of people as users or modifiers of works, ahead of the freedom of those original creators. In practice many of us do this, by sharing works with our friends based on arguments that the “faceless men” of the software/recording “industry” make excessive profits by overcharging for copies of copyright works anyway. This “moral” justification starts becoming shaky, however, with the disintermediation occurring in the creative industries and the massive reduction in prices for authorised electronic copies, thanks to the Internet and online stores.
Freedom comes as a package – it’s not binary
In this new connected world, where millions of people can benefit from the efforts of one, and each one of us benefit daily from the efforts of millions, it is important that we focus not just on four freedoms of recipients of goods and services, but also on the freedom of suppliers to develop a business model that empowers them to be both innovative and sustainable.
The balance between the rights of creators, consumers and consumer/creators should be viewed in the context of each work that is to be produced. I believe a more nuanced framework for the “ethical” creation and supply of intellectual property can be developed to enable creators and innovators to have the freedom to dedicate their efforts to delivering valuable solutions to human problems, without creating an IP monopoly that contrary to its purpose, will slow innovation.
While I am an advocate for Free and Open Source, the fundamental freedom that should be afforded to users, modifiers and creators of intellectual property is a Freedom of (informed) Choice. Freedom for an individual to choose whether the convenience of easily purchasing proprietary apps for a small price through a “curated app store” is worth sacrificing the freedom to modify and share that app; freedom for an artist or writer to share their work for free for non-commercial purposes while earning a living by charging a premium for commercial use, such as in advertising or film production; freedom for a community to invest in building an application for their own free use, while sharing it with other communities on terms that help share the cost; freedom for an artist to encourage remixing their works while charging a modest fee to do so; and freedom for government and educational institutions to favour spending public money to implement and develop Open Standards, and Free and Open Source Software over proprietary solutions.
Free Open Creative Law aims to help inform choices by users, modifiers, creators and distributors of intellectual property, and analyse how different freedoms have differing importance to different groups, in different circumstances.
Along with the success of Free and Open Source Software (FOSS), the emergence of Creative Commons as a means of sharing a variety of works under more flexible but easily understood terms, provides a vital foundation for us to develop our understanding of how innovation can be encouraged and shared, so as to have the greatest impact, through the balancing of different freedoms.
After all, is an innovation in a box, still an innovation?