2011 01 19

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Contents

Feature Cast for 2011-01-19

(00:00:16.995) Intro

(00:03:03.264) Listener Feedback

(00:06:51.675) Hacker Word of the Week: fisking

(00:07:38.678) Rant: Tragedy of the Pseudocommons

  • What is a commons?
    • There has been some excellent thought about commons lately
    • Elinor Ostrom won a Nobel Prize in economic sciences, along with Oliver E. Williamson
    • I had Lewis Hyde on to discuss his book, "Common as Air"
      • Which delves into the history of common ownership of land
        • And how these lesson might apply to re-balancing intellectual monopolies
    • Gabriella Coleman argues in her discussions of piracy
      • That the act of infringing sharing is accompanied by community activities
        • Forming their own sort of commons
    • A commons is in its simplest a resource jointly shared by many people
    • This doesn't explain the rich traditions and staying power of this model
    • Garrett Hardin most famously posed a challenge in his 1968 science article
    • In brief, he posited that if everyone who had access to a commons
      • Acted solely in their own self interest
      • It would lead to each trying to be the first to completely use up any shared resources
    • In his book, Hyde clarifies that Hardin was talking about unregulated commons
    • There are rarely no boundaries to this sort of race to the bottom
    • Land commons had rules to ensure that some portion were left for a variety of purposes
      • From allowing the poorest in the community to freely glean after the harvest
      • To ensuring there was some remainder of lands allowed to carry forward
    • Hyde even points out that markets at that time had similar limits
    • I think that a sense of individual and communal fairness animates such bounded commons
    • This ethos was key to finding the right balance of rules to prevent tragic over use
    • If one shepherd were to try to use the entire acreage set aside for common use
      • I don't think it was the case that the other shepherds would try to beat him to that end
    • Considering this behavior reminds me of the early studies of behavioral economics
    • Classic thought held that a rational actor would simple move to maximize their own benefit
    • There are many of examples that defy this hypothesis including the iterated prisoner's dilemma
      • And the ultimatum game
    • In each, over time participants in simplified economics games
      • Acted more out a sense and expectation of fairness
      • Than trying to get the most value at the expense of others
    • I think this explains why commons continue to intrigue us as the ones that work best
      • Are the ones whose customs are based most squarely on an intuitive grasp of faireness
  • Intellectual commons are even more dependent on fairness and an ethos of liberty
    • With commons constituted from scare resources like land
      • The challenge is harnessing people's sense of equitable usage
        • To prevent exceeding the carrying capacity of the commons
    • When dealing with the realm of ideas, expression and digital copies
      • The carrying capacity is theoretically limitless
    • As Cory Doctorow put it the very first time I interviewed him
      • Intellectual goods, especially in digital form
        • Make up a sort of commons where the sheep shit grass
    • In the case of digital files, this is literally true
      • As the more they are consumed, the more copies exist
    • The goal of any set of ethically motivated rules or norms
      • Is not to prevent overuse to be to keep such commons alive
    • The more artists create, the greater social currency is available
      • To invest in new works of expression and creativity
    • Artistic expression is bound up in our exploration of the world around us
    • As much as that changes over time as societies and individuals grow and evolve
      • Then the act of cultural creation needs to be incessant, perpetual
    • The ever increasing term of copyrights cuts right to the quick
      • Of the fact that creative works are not fungible or substitutable one for the other
    • Social commentary, exploratory thought, critical dialogue
      • All depend on accessing existing works with very specific meaning and cultural resonance
    • In the case of software, there is a parallel current in that code needs to evolve
      • To keep up with changing needs and to reflect our ever improving understanding
        • Of how best to craft particular solutions to enduring problems
    • With deliberately crafted digital commons, fairness is expressed
      • In rules and norms that encourage the liveliness and accessibility of the shared resources
    • CopyLeft ensures this by making any new endeavor based on the commons
      • An explicit part of the commons and just as available for further re-use
    • Licenses that use a share alike clause adhere to works and their derivatives
    • This stitches an ethos of fair sharing and encouragement of re-use
      • Directly into the DNA of the free software commons
    • In the case of the Free Software Foundation, they go much further than simple fairness
    • The four freedoms are based on equitable notions but sustain through free action and access
    • There are simpler examples of these commons built on a foundation of fair sharing
      • And they all share that same legal trick of CopyLeft in some form or another
    • I think the debates around differences in licenses and in dealing with violators
      • Get so passionate because we all have a deep, inherent sense of fairness
  • The risk we know best to date is the enclosure movement
    • In his book, The Public Domain, Jamie Boyle explores this very challenge
    • Again traditional land based commons are use to explain
    • Overuse by a single commoner was rare because of the stints, the norms embedded in the commons
    • The bigger threat was privatization, was taking the commons away
      • Carving them into parcels of land to be sold of for single owners to exploit
    • In the case of copyright, this enclosure is fueled by a deep imbalance in the law
    • Longer and longer terms keep most modern works out of the commons altogether
    • The tragedy for books, films and other works of art isn't that the rights holder alone is using them
      • But rather that they own too many works to make them all commercially available
    • With the enclosure of the intellectual commons by expanding intellectual monopolies
      • Less and less culturally relevant material is available in any form as time goes on
    • The orphan works problem is one of the most visible symptoms of this threat
    • The laws as they stand are keeping so many works out of the commons
      • That in many cases we don't even know who holds the right to use or license them
    • The risk of treating those works as if they were in the commons is too great
    • An owner could step forward at any time and extract damages that far exceed
      • Any commercial value an artist seeking to re-enliven them could help to earn
    • More and more popular books are being written by scholars and thinkers
      • Mapping out the contours of this problem of enclosure
    • The most vocal advocates for the new, CopyLeft fueled digital commons
      • Do an excellent job bring attention to attempts to ignore the copy obligation
        • Imposed by such licenses
    • At least in the tech press and blogs, stories of software companies violating CopyLeft
      • Are all too common, mostly I think as a function of the hard work of defenders of fair sharing
    • We often know the range of fixes to attempts at enclosure
    • In the case of broaching the bargain of CopyLeft, the threat of excessive damages
      • Operates much more aligned to the sense of fairness that animates such licenses
    • In terms of big rights holders clobbering individuals and artists
      • More forgiving exceptions and terms for non-commercial uses
        • Would align better with the dual masters of commercial licensing and cultural creation
    • I do not think that abolishing copyright makes sense
      • Any more than I think intellectual commons are always better than intellectual monopolies
    • My own sense of fairness requires me to respect the choices that each creator makes
      • In releasing their works out into the world
    • Ultimately, I do believe we need a thriving commons as part of what I already mentioned
      • Of our join exploration of what it means to be human, to relate to each other
        • And to the ever changing world around us
    • I hope that eventually enclosure will be less of a concern as we manage to find a better balance
  • A lesser known risk are pseudo commons
    • Here my thoughts are still more speculative, like my discussion of the true burden of software forks
    • Among those who follow free software and open source
      • There certainly is much discussion around one manifestation of pseudo commons, open core
    • While enclosure is a direct threat, of monopoly ownership overtaking shared use
      • What I think of as pseudo commons seemingly encourages common utilization
        • But limits or withholds all that it means to be a member of a commons
    • For digital commons, the sense of fairness encompass free re-use
      • Of everything within the shared pool
    • Even holding back small elements, like RedHat's or Mozilla's trademarks
      • Causes a certain amount of friction even if the reasons for doing so are sound
    • A comparison to land based commons may be useful here too
      • Romantic notions of the commons overlook that they are often tied to mere subsistence
      • They were necessitated as much by genuine scarcity of a resource
        • As by how far out of reach the cost of a not entirely scarce one may be
      • That is to say, land was too dear for those who worked it to be able to own it
      • Common land may have been owned by a member of the gentry
        • And held in common for the benefit of serfs tied to that land
      • Those using the commons had little if any recourse to leave, to seek better opportunities
      • In his discussion of the commons, Hyde clearly points to this state of affairs
      • The transition to fee simple, to direct and individual land ownership
        • Eliminated some of the social benefit of the commons
        • But also freed serfs to potentially explore this new, more egalitarian arrangement
    • In the context of modern, intellectual commons I want to define a pseudo commons then
      • As joint rights of action in a resource owned, in whole or in part, by someone else
    • Arguments over copyright assignment policies arise for this exact reason
    • If intellectual monopoly rights accrue to a company that isn't complete devoted
      • To stewarding a fair and open commons
        • Then some suggest the remedy is to have the assignment remain with contributors
    • I am not as familiar with the ins and outs of this particular legal aspect of FLOSS projects
      • But looking at what has happened in the wake of Oracle buying Sun
        • Makes it hard to avoid concluding that those debating assignment are on to something
    • With the benefit of history, failures of stewardship are probably manageable
    • In these cases, there was a healthy community based on an ethos of fairness and cooperation
    • The concentration of ownership of the intangibles that could be owned
      • Places them in the category of pseudo commons, as advisory tales when consider commons in general
  • I think the risk arises in lumping all kinds of commons together
    • Digital, network commoners are building a positive rhetoric around the term
    • A principal of fair sharing guides thought leading to cooperation, re-use
      • And in some cases, like free software, to stronger ideas of liberty
    • That positivity is attractive, almost like a meme
      • Where folks perhaps bandy the idea around without giving it much deeper consideration
    • It is easy to see the activity around a digital commons too
      • But harder to appreciate the degree to which the ethos of fairness I've tried to call out
        • Really animates those participating in and enlivening a commons
    • Like anything that organically arises from public and individual activity
      • Commercial endeavors are drawn to the newly generated value
    • Digital commoners are creating tons of new resources through their efforts
    • As I've explained, these digital ranges are expanded by their use
    • * The opposite of land based commons
    • You have only to look at software forges like SourceForge, Google Code and github
      • To see a bewildering proliferation of software of all descriptions
    • Many media sharing sites have sprung up using open licenses like Creative Commons
    • Some are internal focused, building communities like open source and free software projects
    • Others are more akin to what Hyde calls carrier commons
      • Where the point is more communication and distribution
    • Some foster both at the same time
      • Like YouTube with its curation features including channels and comments
      • Or Flickr which embodies use or interest based sharing directly in groups
    • Wherever the provider of resources for a commons lays some claim on the joint efforts
      • We'd be wise to think of them in terms of not-quite commons, or pseudo commons
    • This is a subtle distinction and one that some companies intentionally blur
    • Allowing user contribution and superficially free sharing
      • Doesn't constitute a commons in my mind
    • Nicholas Carr states the case in very dire terms
    • This is a very real risk but I put this extreme case in the same bucket as digital enclosure
    • It is broad and clumsy, easy to spot and call out for what it is
    • Time after time dedicated and patient users have taken the time to read through terms of service
      • Specifically calling attention to any overt and exclusive claims to contributed content
    • In the wake of his criticism, the market corrected somewhat
      • With some companies exploring and even permanently offering revenue sharing
    • What I think Carr missed, which is any easy mistake to make
    • * Is that digital goods are not rivalrous
    • User production of digital information doesn't result in an indivisible good
      • That either the users own or platform providers own
    • Creative Commons licenses are non-exclusive, as are many others
    • There is room for service providers to monetize some uses without depriving users of their fair rights
  • Far more insidious and a bit harder to pick apart is the example of open core
    • This is a pseudo commons particular to software and that has only arisen as such fairly recently
    • It definitely relies on the same confusion of form with ethos
    • Often open core companies further that blurring
      • Fostering a genuine open source community around their products
    • There is a limit, though, to where the fair sharing rules govern contributions
    • Some resources are proprietary and their use
      • Adheres the company's sole ownership on the result
    • In effect there is a barrier permeable only in the direction of the company
    • The ability of a sustaining but outside contributor to access the whole
      • Is impeded by the companies walling of what they feel are the most valuable parts
    • My impression is that many community members get involved with open core projects gradually
    • It may start with seeking support through community forums
    • Conversation may lead to code sharing, in the form of patches or plugins
    • Up to that point many commoners may see it as being consistent with the rules of other projects
    • Defenders of open core projects may be those who simply haven't been bitten
      • By the differential enclosure of the community's efforts
    • The risk is the longer you participate, the more likely something you submit will be enclosed
      • And the investment you have in the parts that really are open
        • May act as a form of lock in, making you less willing to leave
  • Careful thought is clearly warranted now that the idea of commons has cache
    • I am not closed to commercial and free uses coexisting in commons
    • What I object to in flawed mixed models like open core
      • Is the confusion of the sharing ethos at the hard of a commons
        • With attempts to extract value to one or a few participants
    • I am glad there are more and more popular books on the subject
      • And a Nobel prize given in recognition of its deep study
    • That gives me confidence that we'll be able to defend commons
      • Even in a world where there is always going to be pressure from commercial interests
    • I don't see the two as mutually exclusive
    • As long as there is even minimal cost for online resources like hosting and bandwidth
      • It behooves us to find ways to be open to experimentation
        • As long as we do not limit the fair and equitable use that I think defines a commons

(00:29:31.074) Outro

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