Viral Spiral - How the Commoners Built a Digital Republic of Their Own
David Bollier (2008)


Harbingers of the Sharing Economy


Richard Stallman's mythic struggle to protect the commons of code set the viral spiral in motion.

The struggle to imagine and invent the software commons, which later set in motion a viral spiral now known as free culture, began with Richard Stallman, a brilliant, eccentric MIT computer programmer. Stallman’s history as a hacker and legal innovator has by now become the stuff of legend. As one of the first people to confront the deep tensions between proprietary control and the public domain in software development, Stallman has achieved that rare pinnacle in the high-tech world, the status of celebrity geek. Besides his programming prowess, he is renowned for devising the GNU General Public License, more commonly known as the GPL, an ingenious legal mechanism to protect shared software code.

Stallman — or RMS, as he likes to be called — has become an iconic figure in the history of free culture in part because he showed courageous leadership in protecting the commons well before anyone else realized that there was even a serious problem. He was a lone voice in the wilderness for at least ten years before the Internet became a mass medium, and so has earned enormous credibility as a leader on matters of free culture. He has also been reviled by some as an autocratic zealot with bad manners and strident rhetoric.

It is perhaps fitting that Stallman could be mistaken for an Old Testament prophet. He is a shaggy, intense, and fiercely stubborn guy. On his Web site, visitors can find a gag photo of him posed as Saint IGNUcius, with his hand raised in mock genuflection and his head encircled by a gold aureole (held in place by two admiring acoyltes). He has been known to deliver lectures barefoot, sleep on the couch in a borrowed office for weeks at a time, and excoriate admirers for using taboo phrases like “intellectual property” and “copyright protection.” Stallman explains that “intellectual property” incorrectly conflates three distinct bodies of law — copyright, patent, and trademark — and emphasizes individual property rights over public rights. “Copyright protection” is misleading, he says, because it implies a positive, necessary act of defending something rather than an acquisitive, aggressive act of a monopolist. Stallman considers content to be a disparaging word, better replaced by “works of authorship.” He has even made a list of fourteen words that he urges people to avoid because of their politically misleading valences. 21

Even though Stallman frequently speaks to august academic and scientific gatherings, and meets with the heads of state in developing countries, he resembles a defiant hippie, Yet for his visionary role in developing free software and the free software philosophy, Stallman is treated as if he were a head of state . . . which, in a way, he is. His story has irresistible mythological resonances — the hero’s journey through hardship and scorn, later vindicated by triumph and acclaim. But for many, including his most ardent admirers, Stallman’s stubborn idealism can also be supremely maddening.

His first encounter with the creeping ethic of proprietary control, in the late 1970s, is an oft-told part of his story. The Xerox Corporation had donated an experimental laser printer to the MIT Artificial Intelligence Lab, where Stallman was then a graduate student. The printer was constantly jamming, causing frustration and wasting everyone’s time. Stallman wanted to devise a software fix but he discovered that the source code was proprietary. Determined to find out who was responsible and force them to fix it, he tracked down a computer scientist at Carnegie Mellon University who had supposedly written the code — but the professor refused to help him; he had signed a nondisclosure agreement with Xerox prohibiting him from sharing the code.

Stallman considered Xerox’s lockup of code a profound moral offense that violated the integrity of the hacker community. (Among practitioners, hacker is a term of respect for an ingenious, resourceful programmer, not an accusation of criminality.) Not only did it prevent people from fixing their own equipment and software, the nondisclosure agreement flouted the Golden Rule. It prohibited sharing with one’s neighbor. The proprietary ethic was not just immoral, by Stallman’s lights, but a barrier to developing great software.

By the late 1970s, he had developed a breakthrough text editor, Emacs, in collaboration with a large community of programmers. “Everybody and his brother was writing his own collection of redefined screen-editor commands, a command for everything he typically liked to do,” Stallman wrote. “People would pass them around and improve them, making them more powerful and more general. The collections of redefinitions gradually became system programs in their own right.” 22 Emacs was one of the first software projects to demonstrate the feasibility of large-scale software collaboration and the deep well of innovative ideas that it could yield. Emacs enabled programmers to add new features with great ease, and to constantly upgrade and customize the program with the latest improvements. The Emacs experiment demonstrated that sharing and interoperability are vital principles for a flourishing online commons.

Two problems quickly emerged, however. If people did not communicate their innovations back to the group, divergent streams of incompatible code would produce a Tower of Babel effect. Second, if the code and its derivations were not shared with everyone, the usefulness of the program would slowly decline. The flow of innovation would dissipate.

To solve these problems, Stallman invented a user contract that he called the “Emacs Commune.” It declared to all users that Emacs was “distributed on a basis of communal sharing, which means that all improvements must be given back to me to be incorporated and distributed.” He enforced the provisions of the contract with an iron hand. As Stallman biographer Sam Williams writes, when the administrators for the MIT Laboratory for Computer Science instituted a new password system — which Stallman considered an antisocial power grab — he “initiated a software ‘strike,’ refusing to send lab members the latest version of Emacs until they rejected the security system on the lab’s computers. The move did little to improve Stallman’s growing reputation as an extremist, but it got the point across: commune members were expected to speak up for basic hacker values.”

Stallman was groping for a way to sustain the hacker ethic of community and sharing in the face of new types of top-down control. Some programmers were beginning to install code that would turn off access to a program unless money was paid. Others were copyrighting programs that had been developed by the community of programmers. Bill Gates, as an undergraduate at Harvard in the late 1970s, was nearly expelled for using publicly funded labs to create commercial software. He was forced to put his code into the public domain, whereupon he left the university to found an obscure Albuquerque company called Micro-Soft.

Software was simply becoming too lucrative for it to remain a shared resource — an attitude that enraged Stallman. He was determined to preserve the integrity of what we would now call the software commons. It was an immense challenge because copyright law makes no provisions for community ownership of creative work beyond “joint authorship” among named individuals. Stallman wanted to devise a way to ensure that all the talent and innovation created by commoners would stay in the commons. The idea that an outsider — a university administrator, software entrepreneur, or large company — could intrude upon a hacker community and take its work was an appalling injustice to Stallman.

Yet this was precisely what was happening to the hacker community at MIT’s AI Lab in the early 1980s. It was slowly disintegrating as one programmer after another trooped off to join commercial software ventures; the software itself was becoming annexed into the marketplace. Software for personal computers, which was just then appearing on the market, was sold as a proprietary product. This meant that the source code — the deep design architecture of the program that operated everything — was inaccessible. 23 Perhaps most disturbing to Stallman at the time was that the leading mainframe operating system, Unix, was locking up its source code. Unix had been developed by AT&T with generous federal funding, and had been generally available for free within academic computing circles. At the time, most mainframe software was given away to encourage buyers to purchase the computer hardware. But when the Department of Justice broke up AT&T in 1984 to spur competition, it also enabled AT&T to enter other lines of business. Naturally, the company was eager to maximize its profits, so in 1985 it began to charge a licensing fee for Unix.

Stallman grieved at the disintegration of the hacker community at the AI Lab as closed software programs inexorably became the norm. As he wrote at the time:

The people remaining at the lab were the professors, students, and non-hacker researchers, who did not know how to maintain the system, or the hardware, or want to know. Machines began to break and never be fixed; sometimes they just got thrown out. Needed changes in software could not be made. The non-hackers reacted to this by turning to commercial systems, bringing with them fascism and license agreements. I used to wander through the lab, through the rooms so empty at night where they used to be full, and think, “Oh my poor AI lab! You are dying and I can’t save you.”

Stallman compared himself to Ishi, “the last survivor of a dead [Native American] culture. And I don’t really belong in the world anymore. And in some ways I feel I ought to be dead.”

Stallman decided to leave MIT — why stay? — but with a brash plan: to develop a free software operating system that would be compatible with Unix. It would be his brave, determined effort to preserve the hacker ethic. He dubbed his initiative the GNU Project, with “GNU” standing for “GNU’s Not Unix” — a recursive hacker’s pun. He also started, in 1985, the Free Software Foundation to help develop GNU software projects and distribute them for free to anyone. (The foundation now occupies a fifth-floor office on a narrow commercial street in downtown Boston.)

The Emacs Commune experience had taught Stallman about the limits of informal social norms in protecting the software commons. It also revealed the difficulties of being the central coordinator of all code changes. This time, in developing a set of software programs for his GNU Project, Stallman came up with a better idea — a legally enforceable license. The goal was to ensure that people could have free access to all derivative works and share and reuse software. The licensing rights were based on the rights of ownership conferred by copyright law.

Stallman called his license the GNU General Public License, or GPL. He puckishly referred to it as “copyleft,” and illustrated it with a reverse copyright symbol (a backward c in a circle). Just as programmers pride themselves on coming up with ingenious hacks to solve a software problem, so the GPL is regarded as a world-class hack around copyright law. Copyright law has no provisions for protecting works developed by a large community of creators. Nor does it offer a way to prevent works from being made proprietary. Indeed, that’s the point of copyright law — to create private property rights.

The GPL bypasses these structural limitations of copyright law by carving out a new zone of collective ownership. A work licensed under the GPL permits users to run any program, copy it, modify it, and distribute it in any modified form. The only limitation is that any derivative work must also be licensed under the GPL. This provision of the GPL means that the license is automatically applied to any derivative work, and to any derivative of a derivative, and so on — hence its viral nature.~[* Stallman told me he considers it “a common calumny to compare the GNU GPL to a virus. That is not only insulting (I have a virus infection in my throat right now and it is no fun), it is also inaccurate, because the GPL does not spread like a virus. It spreads like a spider plant: if you cut off a piece and plant it over here, it grows over here.]~ The GPL ensures that the value created by a given group of commoners shall stay within the commons. To guarantee the viral power of the license, users of GPL’d works cannot modify the licensing terms. No one has to pay to use a GPL’d work — but as a condition for using it, people are legally obliged to license any derivative versions under the GPL. In this way, a GPL’d work is born and forever protected as “shareable.”

Version 1.0 of the GPL was first published in 1989. It was significant, writes Sam Williams, because it “demonstrated the intellectual similarity between legal code and software code. Implicit within the GPL’s preamble was a profound message: instead of viewing copyright law with suspicion, hackers should view it as yet another system begging to be hacked.” 24 The GPL also served to articulate, as a matter of law, the value of collaborative work. A universe of code that might previously have been regarded as part of the “public domain” — subject to free and unrestricted access — could now be seen in a subtly different light.

A GPL’d work is not part of the public domain, because the public domain has no rules constraining how a work may be used. Works in the public domain are open to anyone. The GPL is similar, but with one very important restriction: no private appropriation is allowed. Any follow-on uses must remain free for others to use (a provision that some property rights libertarians regard as “coercive”). Works in the public domain, by contrast, are vulnerable to privatization because someone need only add a smidgen of “originality” to the work and she would own a copyright in the resulting work. A GPL’d work and its derivatives stay free forever — because anyone who tries to privatize a GPL’d work is infringing on the license.

For Stallman, the GPL became the symbol and tool for enacting his distinct political vision of “freedom.” The license rests on four kinds of freedoms for users of software (which he lists using computer protocols):

Freedom 0: The freedom to run the program for any purpose;

Freedom 1: The freedom to study how the program works, and to adapt it to your needs. (Access to the source code is a precondition for this);

Freedom 2: The freedom to redistribute copies so you can help your neighbor; and

Freedom 3: The freedom to improve the program, and release your improvements to the public, so that the whole community benefits. (Access to the source code is a precondition for this.)

Stallman has become an evangelist for the idea of freedom embodied in all the GNU programs. He refuses to use any software programs that are not “free,” and he has refused to allow his appearances to be Webcast if the software being used was not “free.” “If I am to be an honest advocate for free software,” said Stallman, “I can hardly go around giving speeches, then put pressure on people to use nonfree software. I’d be undermining my own cause. And if I don’t show that I take my principles seriously, I can’t expect anybody else to take them seriously.” 25

Stallman has no problems with people making money off software. He just wants to guarantee that a person can legally use, copy, modify, and distribute the source code. There is thus an important distinction between software that is commercial (possibly free) and software that is proprietary (never free). Stallman tries to explain the distinction in a catchphrase that has become something of a mantra in free software circles: “free as in ‘free speech,’ not as in ‘free beer.’” The point is that code must be freely accessible, not that it should be free of charge. (This is why “freeware” is not the same as free software. Freeware may be free of charge, but it does not necessarily make its source code accessible.)

Eben Moglen, a professor of law at Columbia University and general counsel for the Free Software Foundation since 1994, calls the provisions of the GPL “elegant and simple. They respond to the proposition that when the marginal cost of goods is zero, any nonzero cost of barbed wire is too high. That’s a fact about the twentyfirst century, and everybody had better get used to it. Yet as you know, there are enormous cultural enterprises profoundly committed to the proposition that more and more barbed wire is necessary. And their basic strategy is to get that barbed wire paid for by the public everywhere.” 26

The GPL truly was something new under the sun: a legally enforceable tool to vouchsafe a commons of software code. The license is based on copyright law yet it cleverly turns copyright law against itself, limiting its reach and carving out a legally protected zone to build and protect the public domain. In the larger scheme of things, the GPL was an outgrowth of the “gift economy” ethic that has governed academic life for centuries and computer science for decades. What made the GPL different from these (abridgeable) social norms was its legal enforceability.

The GPL might well have remained an interesting but arcane curiosity of the software world but for two related developments: the rise of the Internet in the 1990s and software’s growing role as core infrastructure in modern society. As the computer and Internet revolutions have transformed countless aspects of daily life, it has become evident that software is not just another product. Its design architecture is seminally important to our civic freedoms and democratic culture. Or as Lawrence Lessig famously put it in his 1999 book Code, “code is law.” Software can affect how a business can function, how information is organized and presented, and how individuals can think, connect with one another, and collaborate. Code invisibly structures people’s relationships, and thus serves as a kind of digital constitutional order. As an economic force, software has become as critical as steel or transportation in previous eras: a building block for the basic activities of the economy, businesses, households, and personal life.

Stallman’s atavistic zeal to preserve the hacker community, embodied in the GPL, did not immediately inspire others. In fact, most of the tech world was focused on how to convert software into a marketable product. Initially, the GPL functioned like a spore lying dormant, waiting until a more hospitable climate could activate its full potential. Outside of the tech world, few people knew about the GPL, or cared.~[* The GPL is not the only software license around, of course, although it was, and remains, the most demanding in terms of protecting the commons of code. Other popular open-source licenses include the MIT, BSD, and Apache licenses, but each of these permit, but do not require, that the source code of derivative works also be freely available. The GPL, however, became the license used for Linux, a quirk of history that has had far-reaching implications.]~ And even most techies were oblivious to the political implications of free software.

Working under the banner of the Free Software Foundation, Stallman continued through the 1980s and 1990s to write a wide number of programs needed to build a completely free operating system. But just as Lennon’s music was better after finding McCartney, Stallman’s free software needed to find Linus Torvalds’s kernel for a Unix-like operating system. (A kernel is the core element of an operating system that controls how the various applications and utilities that comprise the system will run.)

In 1991, Torvalds was a twenty-one-year-old computer science student at the University of Helsinki, in Finland. Frustrated by the expense and complexity of Unix, and its inability to work on personal computers, Torvalds set out to build a Unix-like operating system on his IBM AT, which had a 33-megahertz processor and four megabytes of memory. Torvalds released a primitive version of his program to an online newsgroup and was astonished when a hundred hackers responded within a few months to offer suggestions and additions. Over the next few years, hundreds of additional programmers joined the project, which he named “Linux” by combining his first name, “Linus,” with “Unix.” The first official release of his program came in 1994. 27

The Linux kernel, when combined with the GNU programs developed by Stallman and his free software colleagues, constituted a complete computer operating system — an astonishing and unexpected achievement. Even wizened computer scientists could hardly believe that something as complex as an operating system could be developed by thousands of strangers dispersed around the globe, cooperating via the Internet. Everyone assumed that a software program had to be organized by a fairly small group of leaders actively supervising the work of subordinates through a hierarchical authority system — that is, by a single corporation. Yet here was a virtual community of hackers, with no payroll or corporate structure, coming together in a loose, voluntary, quasi-egalitarian way, led by leaders who had earned the trust and respect of some highly talented programmers.

The real innovation of Linux, writes Eric S. Raymond, a leading analyst of the technology, was “not technical, but sociological”:

Linux was rather casually hacked on by huge numbers of volunteers coordinating only through the Internet. Quality was maintained not by rigid standards or autocracy but by the naively simple strategy of releasing every week and getting feedback from hundreds of users within days, creating a sort of rapid Darwinian selection on the mutations introduced by developers. To the amazement of almost everyone, this worked quite well. 28

The Free Software Foundation had a nominal project to develop a kernel, but it was not progressing very quickly. The Linux kernel, while primitive, “was running and ready for experimentation,” writes Steven Weber in his book The Success of Open Source: “Its crude functionality was interesting enough to make people believe that it could, with work, evolve into something important. That promise was critical and drove the broader development process from early on.” 29

There were other powerful forces driving the development of Linux. Throughout the 1990s, Microsoft continued to leverage its monopoly grip over the operating system of personal computers, eventually attracting the attention of the U.S. Department of Justice, which filed an antitrust lawsuit against the company. Software competitors such as Hewlett-Packard, Sun Microsystems, and IBM found that rallying behind an open-source alternative — one that was legally protected against being taken private by anyone else— offered a terrific way to compete against Microsoft.

Meanwhile, the once-free Unix software program was becoming a fragmented mess. So many different versions of Unix were being sold that users were frustrated by the proliferation of incompatible proprietary versions. In the words of a Sun Microsystems executive at the time, users were unhappy with the “duplication of effort around different implementations, leading to high prices; poor compatibility; and worst of all, slower development as each separate Unix vendor had to solve the same kinds of problems independently. Unix has become stagnant. . . .” 30

Given these problems, there was great appeal in a Unix-like operating system with freely available source code. Linux helped address the fragmentation of Unix implementations and the difficulties of competing against the Microsoft monopoly. Knowing that Linux was GPL’d, hackers, academics, and software companies could all contribute to its development without fear that someone might take it private, squander their contributions, or use it in hostile ways. A commons of software code offered a highly pragmatic solution to a market dysfunction.

Stallman’s GNU Project and Torvalds’s Linux software were clearly synergistic, but they represented very different styles. The GNU Project was a slower, more centrally run project compared to the “release early and often” developmental approach used by the Linux community. In addition, Stallman and Torvalds had temperamental and leadership differences. Stallman has tended to be more overbearing and directive than Torvalds, who does not bring a political analysis to the table and is said to be more tolerant of diverse talents. 31

So despite their natural affinities, the Free Software Community and the Linux community never found their way to a grand merger. Stallman has applauded Linux’s success, but he has also resented the eclipse of GNU programs used in the operating system by the Linux name. This prompted Stallman to rechristen the program “GNU/Linux,” a formulation that many people now choose to honor.

Yet many hackers, annoyed at Stallman’s political crusades and crusty personal style, committed their own linguistic raid by renaming “free software” as “open source software,” with a twist. As GNU/Linux became more widely used in the 1990s, and more corporations began to seriously consider using it, the word free in “free software” was increasingly seen as a problem. The “free as in free speech, not as in free beer” slogan never quite dispelled popular misconceptions about the intended sense of the word free. Corporate information technology (IT) managers were highly wary about putting mission-critical corporate systems in the hands of software that could be had for free. Imagine telling the boss that you put the company’s fate in the hands of a program you downloaded from the Internet for free!

Many corporate executives clearly recognized the practical value of free software; they just had no interest in joining Stallman’s ideological crusade or being publicly associated with him. They did not necessarily want to become champions of the “four freedoms” or the political vision implicit in free software. They simply wanted code that works well. As Eric Raymond wrote: “It seemed clear to us in retrospect that the term ‘free software’ had done our movement tremendous damage over the years. Part of this stemmed from the well-known ‘free speech/free beer’ ambiguity. Most of it came from something worse — the strong association of the term ‘free software’ with hostility to intellectual property rights, communism, and other ideas hardly likely to endear themselves to an MIS [management information systems] manager.” 32

One response to this issue was the rebranding of free software as “open-source” software. A number of leading free software programmers, most notably Bruce Perens, launched an initiative to set forth a consensus definition of software that would be called “opensource.” At the time, Perens was deeply involved with a community of hackers in developing a version of Linux known as the Debian GNU/Linux distribution. Perens and other leading hackers not only wanted to shed the off-putting political dimensions of “free software,” they wanted to help people deal with the confusing proliferation of licenses. A lot of software claimed to be free, but who could really tell what that meant when the terms were so complicated and legalistic?

The Open Source Initiative, begun in 1998, helped solve this problem by enumerating criteria that it considered significant in judging a program to be “open.” 33 Its criteria, drawn from the Debian community, helped standardize and stabilize the definition of open-source software. Unlike the GPL, permissive software licenses such as BSD and MIT allow a program to be freely copied, modified, and distributed but don’t require it. A programmer can choose to make a proprietary derivative without violating the license.

The Open Source Initiative has focused more on the practical, technical merits of software than on the moral or political concerns that have consumed Stallman. Free software, as Stallman conceived it, is about building a cohesive moral community of programmers dedicated to “freedom.” The backers of open-source software are not necessarily hostile to those ideals but are more interested in building reliable, marketable software and improving business performance. As Elliot Maxwell described the free software/open source schism:

[S]upporters of the Open Source Initiative were willing to acknowledge a role for proprietary software and unwilling to ban any link between open-source software and proprietary software. Richard Stallman aptly characterized the differences: “We disagree on the basic principles but agree more or less on the practical recommendations. So we can and do work together on many specific projects.” 34

The philosophical rift between free software and open-source software amounts to a “friendly schism,” a set of divergent approaches that has been bridged in some respects by language. 35 Observers often use the acronym FOSS to refer to both free software and open-source software, or sometimes FLOSS — the L stands for the French word libre, which avoids the double meaning of the English word free. Whatever term is used, free and open-source software has become a critical tool for making online marketplaces more competitive, and for creating open, accessible spaces for experimentation. In his classic essay, “The Cathedral and the Bazaar,” Eric Raymond explains how the licenses help elicit important noneconomic, personal energies:

The Linux world behaves in many respects like a free market or an ecology, a collection of selfish agents attempting to maximize utility which in the process produces a selfcorrecting spontaneous order more elaborate and efficient than any amount of central planning could have achieved. . . . The utility function Linux hackers are maximizing is not classically economic, but is the intangible of their own ego satisfaction and reputation among other hackers. 36

It turns out that an accessible collaborative process, FOSS, can elicit passions and creativity that entrenched markets often cannot. In this respect, FOSS is more than a type of freely usable software; it reunites two vectors of human behavior that economists have long considered separate, and points to the need for new, more integrated theories of economic and social behavior.

FOSS represents a new breed of “social production,” one that draws upon social energies that neoclassical economists have long discounted or ignored. It mobilizes the personal passions and moral idealism of individuals, going beyond the overt economic incentives that economists consider indispensable to wealth creation. The eighteenth-century economist Adam Smith would be pleased. He realized, in his 1776 book The Wealth of Nations, that people are naturally given to “truck, barter and exchange” — but he also recognized, in his earlier The Theory of Moral Sentiments, written in 1759, that people are motivated by deep impulses of human sympathy and morality. Neoclassical economists have long segregated these as two divergent classes of human behavior, regarding altruism and social sympathies as subordinate to the rational, utility-maximizing, selfserving behavior. FOSS embodies a new synthesis — and a challenge to economists to rethink their crude model of human behavior, Homo economicus. Free software may have started as mere software, but it has become an existence proof that individual and collective goals, and the marketplace and the commons, are not such distinct arenas. 37 They are tightly intertwined, but in ways we do not fully understand. This is a golden thread that will reappear in later chapters.

Red Hat, a company founded in 1993 by Robert Young, was the first to recognize the potential of selling a custom version (or “distribution”) of GNU/Linux as a branded product, along with technical support. A few years later, IBM became one of the first large corporations to recognize the social realities of GNU/Linux and its larger strategic and competitive implications in the networked environment. In 1998 IBM presciently saw that the new software development ecosystem was becoming far too variegated and robust for any single company to dominate. It understood that its proprietary mainframe software could not dominate the burgeoning, diversified Internet-driven marketplace, and so the company adopted the open-source Apache Web server program in its new line of WebSphere business software.

It was a daring move that began to bring the corporate and open-source worlds closer together. Two years later, in 2000, IBM announced that it would spend $1 billion to help develop GNU/Linux for its customer base. IBM shrewdly realized that its customers wanted to slash costs, overcome system incompatibilities, and avoid expensive technology “lock-ins” to single vendors. GNU/Linux filled this need well. IBM also realized that GNU/Linux could help it compete against Microsoft. By assigning its property rights to the commons, IBM could eliminate expensive property rights litigation, entice other companies to help it improve the code (they could be confident that IBM could not take the code private), and unleash a worldwide torrent of creative energy focused on GNU/Linux. Way ahead of the curve, IBM decided to reposition itself for the emerging networked marketplace by making money through tech service and support, rather than through proprietary software alone. 38

It was not long before other large tech companies realized the benefits of going open source. Amazon and eBay both saw that they could not affordably expand their large computer infrastructures without converting to GNU/Linux. GNU/Linux is now used in everything from Motorola cell phones to NASA supercomputers to laptop computers. In 2005, BusinessWeek magazine wrote, “Linux may bring about the greatest power shift in the computer industry since the birth of the PC, because it lets companies replace expensive proprietary systems with cheap commodity servers.” 39 As many as one-third of the programmers working on open-source projects are corporate employees, according to a 2002 survey. 40

With faster computing speeds and cost savings of 50 percent or more on hardware and 20 percent on software, GNU/Linux has demonstrated the value proposition of the commons. Open source demonstrated that it can be cheaper and more efficacious to collaborate in the production of a shared resource based on common standards than to strictly buy and own it as private property.

But how does open source work without a conventional market apparatus? The past few years have seen a proliferation of sociological and economic theories about how open-source communities create value. One formulation, by Rishab Ghosh, compares free software development to a “cooking pot,” in which you can give a little to the pot yet take a lot — with no one else being the poorer. “Value” is not measured economically at the point of transaction, as in a market, but in the nonmonetary flow of value that a project elicits (via volunteers) and generates (through shared software). 41 Another important formulation, which we will revisit later, comes from Harvard law professor Yochai Benkler, who has written that the Internet makes it cheap and easy to access expertise anywhere on the network, rendering conventional forms of corporate organization costly and cumbersome for many functions. Communities based on social trust and reciprocity are capable of mobilizing creativity and commitment in ways that market incentives often cannot — and this can have profound economic implications. 42 Benkler’s analysis helps explain how a global corps of volunteers could create an operating system that, in many respects, outperforms software created by a well-paid army of Microsoft employees.

A funny thing happened to free and open-source software as it matured. It became hip. It acquired a cultural cachet that extends well beyond the cloistered precincts of computing. “Open source” has become a universal signifier for any activity that is participatory, collaborative, democratic, and accountable. Innovators within filmmaking, politics, education, biological research, and drug development, among other fields, have embraced the term to describe their own attempts to transform hidebound, hierarchical systems into open, accessible, and distributed meritocracies. Open source has become so much of a cultural meme — a self-replicating symbol and idea — that when the Bikram yoga franchise sought to shut down unlicensed uses of its yoga techniques, dissident yoga teachers organized themselves into a nonprofit that they called Open Source Yoga Unity. To tweak the supremacy of Coca-Cola and Pepsi, culture jammers even developed nonproprietary recipes for a cola drink and beer called “open source cola” and “open source beer.” 43

Stallman’s radical acts of dissent in the 1980s, regarded with bemusement and incredulity at the time, have become, twenty-five years later, a widely embraced ideal. Small-d democrats everywhere invoke open source to lambaste closed and corrupt political systems and to express their aspirations for political transcendence. People invoke open source to express a vision of life free from overcommercialization and corporate manipulation. The term enables one to champion bracing democratic ideals without seeming naïve or flaky because, after all, free software is solid stuff. Moreover, despite its image as the software of choice for granola-loving hippies, free and open-source software is entirely compatible with the commercial marketplace. How suspect can open source be when it has been embraced by the likes of IBM, Hewlett-Packard, and Sun Microsystems?

The appeal of “openness” has become so great that it is sometimes difficult to recognize that limits on openness are not only necessary but desirable. The dark side of openness is the spam that clogs the Internet, the ability to commit fraud and identity theft, and the opportunities for disturbed adults to prey sexually upon children. Still, the virtues of an open environment are undeniable; what is more difficult is negotiating the proper levels of openness for a given realm of online life.

Nearly twenty years after the introduction of the GPL, free software has expanded phenomenally. It has given rise to countless FOSS software applications, many of which are major viral hits such as Thunderbird (e-mail), Firefox (Web browser), Ubuntu (desktop GNU/Linux), and Asterisk (Internet telephony). FOSS has set in motion, directly or indirectly, some powerful viral spirals such as the Creative Commons licenses, the iCommons/free culture movement, the Science Commons project, the open educational resource movement, and a new breed of open-business ventures, Yet Richard Stallman sees little connection between these various “open” movements and free software; he regards “open” projects as too vaguely defined to guarantee that their work is truly “free” in the free software sense of the term. “Openness and freedom are not the same thing,” said Stallman, who takes pains to differentiate free software from open-source software, emphasizing the political freedoms that lie at the heart of the former. 44

Any revolution is not just about new tools and social practices, however. It is also about developing new ways of understanding the world. People must begin to see things in a new perspective and talk with a new vocabulary. In the 1990s, as Disney, Time Warner, Viacom, and other media giants realized how disruptive the Internet might be, the public was generally oblivious that it might have a direct stake in the outcome of Internet and copyright policy battles. Big Media was flexing its muscles to institute all sorts of self-serving, protectionist fixes — copy-protection technologies, broader copyright privileges, one-sided software and Web licenses, and much more — and most public-interest groups and civic organizations were nowhere to be seen.

Fortunately, a small but fierce and keenly intelligent corps of progressive copyright scholars were beginning to discover one another in the 1990s. Just as the hacker community had had to recognize the enclosure of its commons of software code, and embrace the GPL and other licenses as defensive remedies, so progressive copyright scholars and tech activists were grappling with how to defend against a related set of enclosures, The relentless expansion of copyright law was eroding huge swaths of the public domain and fair use doctrine. Tackling this problem required asking a question that few in the legal or political establishments considered worth anyone’s time — namely, What’s so valuable about the public domain, anyway?

 21. Joshua Gray, editor, Free Software Free Society: Selected Essays of Richard M. Stallman (Boston: GNU Press, 2002), pp. 190–91.

 22. Sam Williams, Free as in Freedom: Richard Stallman’s Crusade for Free Software (Sebastopol, CA: O’Reilly & Associates 2002), pp. 76–88.

 23. Steven Levy, Hackers: Heroes of the Computer Revolution (New York: Delta, 1993), pp. 425, 427.

 24. Williams, Free as in Freedom, p. 127.

 25. Stallman at MIT forum, “Copyright and Globalization in the Age of Computer Networks,” April 19, 2001, available at http://media-in-transition.mit.edu/forums/copyright/transcript.html.

 26. Eben Moglen, “Freeing the Mind: Free Software and the Death of Proprietary Culture,” June 29, 2003, available at http://emoglen.law/columbia.edu/publications/maine-speech.html.

 27. One useful history of Torvalds and Linux is Glyn Moody, Rebel Code: Inside Linux and the Open Source Revolution (Cambridge, MA: Perseus, 2001).

 28. Eric S. Raymond, “A Brief History of Hackerdom,” http://www.catb.org/~est/writings/cathedral-bazaar/hacker-history/ar01s06.html.

 29. Steven Weber, The Success of Open Source (Cambridge, MA: Harvard University Press, 2004), p. 100.

 30. Williams, Free as in Freedom, p. 100.

 31. Torvalds included a brief essay, “Linux kernel management style,” dated October 10, 2004, in the files of the Linux source code, with the annotation, “Wisdom passed down the ages on clay tablets.” It was included as an epilogue in the book Open Life: The Philosophy of Open Source, by Henrik Ingo, and is available at http://www.openlife.cc/node/43.

 32. Eric S. Raymond, “The Revenge of the Hackers,” in Chris DiBona, Sam Ockman, and Mark Stone, eds., Open Sources: Voices from the Open Source Revolution (Sebastopol, CA: O’Reilly & Associates, 1999), p. 212.

 33. http://www.opensource.org.

 34. Elliot Maxwell, citing Wikipedia entry on “Open Source Movement,” in “Open Standards Open Source and Open Innovation,” in Innovations: Technology, Governance, Globalization 1, no. 3 (Summer 2006), p. 134, note 56.

 35. Richard Stallman has outlined his problems with the “open source” definition of software development in an essay, “Why ‘Open Source’ Misses the Point of Free Software,” http://www.gnu.org/philosophy/open-source-misses-thepoint.html.

 36. Eric Raymond, “The Cathedral and the Bazaar,” available at http://www.catb.org/~esr/writings/cathedral-bazaar/cathedral-bazaar/ar01s11.html.

 37. I am grateful to Nicholas Gruen for this insight, taken from his essay “Geeks Bearing Gifts: Open Source Software and Its Enemies,” in Policy 21, no. 2 (Winter 2005), pp. 39–48.

 38. Andrew Leonard, “How Big Blue Fell for Linux,” Salon.com, September 12, 2000, available at http://www.salon.com/tech/fsp/2000/09/12/chapter_7_part_one.print.html. The competitive logic behind IBM’s moves are explored in Pamela Samuelson, “IBM’s Pragmatic Embrace of Open Source,” Communications of the ACM 49, no. 21 (October 2006), and Robert P. Merges, “A New Dynamism in the Public Domain,” University of Chicago Law Review 71, no. 183 (Winter 2004).

 39. Steve Hamm, “Linux Inc.,” BusinessWeek, January 31, 2005.

 40. Cited by Elliot Maxwell in “Open Standards Open Source and Open Innovation,” note 80, Berlecon Research, Free/Libre Open Source Software: Survey and Study — Firms’ Open Source Activities: Motivations and Policy Implications, FLOSS Final Report, Part 2, at www.berlecon.de/studien/downloads/200207FLOSS _Activities.pdf.

 41. Rishab Aiyer Ghosh, “Cooking Pot Markets and Balanced Value Flows,” in Rishab Aiyer Ghosh, ed., CODE: Collaborative Ownership and the Digital Economy (Cambridge, MA: MIT Press, 2005), pp. 153–68.

 42. See, e.g., Benkler, “Coase’s Penguin, or Linux and the Nature of the Firm,” Yale Law Journal 112, no. 369 (2002); Benkler, “ ‘Sharing Nicely’: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production,” Yale Law Journal 114, no. 273 (2004).

 43. Open Source Yoga Unity, http://www.yogaunity.org; open-source cola, http://alfredo.octavio.net/soft_drink_formula.pdf; open-source beer, Vores OI (Danish for “Our Beer”), http://en.wikipedia.org/wiki/Vores_%C3%981. See also http://freebeer.org/blog and http://www.project21.ch/freebeer.

 44. Interview with Richard Stallman, January 21, 2008.

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